Keecheri Service Co-Operative Bank Ltd v. State Co-operative Election Commission and Others (W.A. Nos. 2394-2396 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** **WA.No.2394 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25488/2019(I) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** - **1 KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668, KULAYATTIKKARA P.O.ERNAKULAM DISTRICT, PIN-682 317,REPRESENTED BY ITS SECRETARY.** - **2 THE ADMINISTRATIVE COMMITTEE OF THE KEECHERI SERVICE CO-OPERATIVE BANK LTD NO 668, REPRESENTED BY ITS CONVENOR, KULAYATTIKKARA P.O.ERNAKULAM DISTRICT, PIN-682 317,** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** - **1 RAMESH.M.M, AGED 52 YEARS S/O MADHAVAN NAIR, MELEKKAT (GOWRISHANKARAM), KEECHERI, KULAYATTIKKARA ,ERNAKULAM , PIN-682 317,** - **2 THE STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001.** - **3 THE ELECTORAL OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD NO 668, KULAYATTIKKARA P.O.ERNAKULAM DISTRICT, PIN-682 317,(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, CIRCLE COOPERATIVE UNION OFFICE, VALANJAMBALAM P.O.ERNAKULAM).** - **4 THE RETURNING OFFICER,** _**WA.2394, 2395 & 2396/19**_ 2 **KEECHERI SERVICE CO-OPERATIVE BANK LTD NO 668, KULAYATTIKKARA P.O.ERNAKULAM DISTRICT, PIN-682 317(UNIT INSPECTOR, TRIPUNITHURA UNIT,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM P.O.ERNAKULAM).** **5 THE ASSISTANT REGISTRAR,** **OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM P.O.ERNAKULAM DISTRICT-682 016.** **ADDL.6 AJAYAN K.K., AGED 37 YEARS, S/O.KRISHNAN, RESIDING AT KALAYIL HOUSE, KULAYATTIKKARA P.O., KANJIRAMATTOM, ERNAKULAM DISTRICT – 682 317.** **ADDL.R6 IS IMPLEADED AS PER ORDER IN IA./2019 DATED 3.12.2019.** **R6 BY ADV. T.B.HOOD R6 BY ADV. SMT.M.ISHA R6 BY ADV. SRI.AMAL KASHA** ## **OTHER PRESENT:** **SRI.R.LAKSHMI NARAYAN, SRI.C.S.MANILAL, SR.GP SRI.P.N.SANTHOSH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2019, ALONG WITH WA.2395/2019, WA.2396/2019, THE COURT ON 05-12-2019 DELIVERED THE FOLLOWING:** _**WA.2394, 2395 & 2396/19**_ 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **WA.No.2395 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 24890/2019(I) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** |**1**|**KEECHERI SERVICE CO-OPERATIVE BANK LTD. NO. 668,**| |---|---| ||**KULAYATTIKKARA.P.O., ERNAKULAM DISTRICT, PIN-682317**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE ADMINISTRATIVE COMMITTEE OF THE**| ||**KEECHERI SERVICE CO-OPERATOIVE BANK LTD NO.668,**| ||**REPRESENTED BY ITS CONVENOR, KULAYATTILKARA.P.O.,**| ||**ERNAKULAM DISTRICT-682317**| ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** |**1**|**HAMEED KUTTY.M.S**| |---|---| ||**AGED 55 YEARS**| ||**S/O.SULAIMAN, PAZHUVELIL HOUSE, KULAYATTIKARA.P.O.,**| ||**ERNAKULAM DISTRICT-682317**| |**2**|**THE STATE CO-OPERATIVE ELECTION COMMISSION**| ||**REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-**| ||**695001**| |**3**|**THE ELECTORAL OFFICER**| ||**KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668,**| ||**KULAYATTIKARA.P.O., ERNAKULAM DISTRICT-**| ||**682317(ASSISTANT REGISTRAR OF CO-OPERATIVE**| ||**SOCIETIES(GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE**| ||**UNION OFFICE, VALANJAMBALAM.P.O., ERNAKULAM).**| |**4**|**THE RETURNING OFFICER**| ||**KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668,**| ||**KULAYATTIKARA.P.O., ERNAKULAM DISTRICT-682317(UNIT**| _**WA.2394, 2395 & 2396/19**_ 4 **INSPECTOR, TRIPUNITHURA UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF C-OPERATIVE SOCIETIES(GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM.P.O, ERNAKULAM** **5 THE ASSISTNAT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE,VALANJAMBALAM.P.O., ERNAKULAM DISTRICT682016** **ADDL.6 HAMEED KUTTY M.S., AGED 55 YEARS, S/O.SULAIMAN, PAZHUVELIL HOUSE, KULAYATTIKARA P.O., ERNAKULAM DISTRICT-682 317.** **ADDLR6 IS IMPLEADED AS PER ORDER IN I.A.NO.1/19 DATED 3.12.2019.** **R1 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R1 BY ADV. SMT.NISHA GEORGE R6 BY ADV. T.B.HOOD R6 BY ADV. SMT.M.ISHA R6 BY ADV. SRI.AMAL KASHA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2019, ALONG WITH WA.2394/2019, WA.2396/2019, THE COURT ON 05-12-2019 DELIVERED THE FOLLOWING:** _**WA.2394, 2395 & 2396/19**_ 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** ## **WA.No.2396 OF 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 26552/2019(T) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **KEECHERI SERVICE CO-OPERATIVE BANK LTD, NO.668, KULAYATTIKKARA.P.O., ERNAKULAM DISTRICT, PIN-682317 REPRESENTED BY ITS SECRETARY** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** |**1**|**K.V.SAJU**| |---|---| ||**AGED 52 YEARS**| ||**KOMADATHUSSERIL HOUSE, KULAYETTIKKARA.P.O.,**| ||**ERNAKULAM, PIN-682317**| |**2**|**STATE CO-OPERATIVE ELECTION COMMISSION**| ||**THIRUVANANTHAPURAM-695001**| |**3**|**ELECTORAL OFFICER**| ||**KEECHERI SERVICE C0-OPERATIVE BANK LTD NO.668,**| ||**KULAYATTIKKARA.P.O., ERNAKULAM DISTRICT, PIN-682317**| |**4**|**RETURNING OFFICER**| ||**KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668,**| ||**KULAYATTINKKARA.P.O., ERNAKULAM DISTRICT, PIN-**| ||**682317**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-12-2019, ALONG WITH WA.2394/2019, WA.2395/2019, THE COURT ON 05-12-2019 DELIVERED THE FOLLOWING:** **“C.R”** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** -------------------------------------------------W.A.Nos.2394, 2395 & 2396 of 2019 -----------------------------------------------Dated this the 5[th] day of December, 2019 ## **JUDGMENT** ## _**Arun, J.**_ These writ appeals arise out of a common judgment, by which the learned Single Judge allowed the writ petitions filed by few members of the Keecheri Service Co-operative Bank Ltd. ('the Society', for short), the appellant herein. The writ petitions were filed alleging inclusion of ineligible members in the voters' list published in connection with the election to the Managing Committee of the Society. Shorn of unnecessary details, the facts which led to the filing of the writ petitions are as follows; By notification dated 6.9.2019 published by the State Cooperative Election Commission ('the Commission', for short), election to the Managing Committee of the Society was notified to be held on 27.10.2019. As per the schedule of election, the preliminary voters' list was to be published on 23.9.2019 and the final voters' list on 3.10.2019. The share value, which was originally fixed at Rs.5/- per share was enhanced to Rs.50/- by an amendment to the bye-laws of the Society. The amendment was registered on 12.6.2014. As on 31.8.2018, a total of 8595 _**WA.2394, 2395 & 2396/19**_ 7 members had paid the enhanced share value and acquired eligibility to cast their vote in the election and the General Body. 2. The elected Managing Committee of the Society having been superseded, an Administrative Committee is at the helm of its affairs. The writ petitions were filed alleging that, after publication of the election notification, at the instance of the Administrative Committee, the deficit share value was being remitted _en masse_ and the names of those members included in the voters' list, with the objective of influencing the result of the election. As against 8595 eligible voters as on 31.8.2018, a preliminary voters' list containing 12084 voters was published by the Electoral Officer. Based on objections, the Electoral Officer removed 2842 voters from the preliminary voters' list and published a final voters' list consisting of 9242 voters. 3. In W.P(C).No.26552 of 2019, it is alleged that even after removal of 9242 voters, the final voters' list contains the names of large number of persons, who had remitted the enhanced share value within 60 days of 27.10.2019, the date notified for election. The prayer in the writ petition is for conduct of election after removing the ineligible members from the voters' list and to declare that only members who have remitted the enhanced share value, 60 days prior to the date of election (27.10.2019), are entitled to vote in the ensuing election. While the issue was pending consideration, by Government _**WA.2394, 2395 & 2396/19**_ 8 Order dated 4.10.2019, process of election to the Co-operative Societies in 5 Districts, where by-elections to the State Legislative Assembly was announced, stood adjourned. Later, the adjourned election to the Managing Committee of the Society was notified to be conducted on 8.12.2019. The Society and the Administrative Committee contended that the members included in the final voters' list had paid the enhanced share value 60 days prior to the adjourned date of election, i.e., 8.12.2019, and had acquired the eligibility to vote. 4. The learned Single Judge, after careful scrutiny of Sections 19 and 20 of the Kerala Co-operative Societies Act, Rules 26 and 28 of the Kerala Co-operative Societies Rules, the Division Bench decision of this Court in _**Vasavan v. District Coir Project Officer**_ [1993 (1) KLT 293] and the decision of a learned Single Judge in _**Rajan v. Electoral Officer**_ [2009 (3) KLT 1046]; on a purposive interpretation of the provisions allowed the writ petitions and directed the Returning Officer to recast the voters' list excluding the members who had not paid the enhanced share value 60 days prior to 27.10.2019, the originally notified date of election. The Electoral Officer has prepared such a voters list in compliance of the directions in the impugned judgment, which was also handed over to us across the Bar; which is not disputed by either of the rival contestants. _**WA.2394, 2395 & 2396/19**_ 9 5. Heard Sri.P.C.Sasidharan, learned Counsel for the appellants, Senior Counsel Sri. George Poonthottam and Sri.D.Somasundaram, the learned Counsel appearing for the party respondents, Sri.T.B.Hood, the learned Counsel for additional respondents and the learned Senior Government Pleader Sri. Mohammed Hashim. 6. The learned Counsel for the appellants contends that in _**Vasavan** ,_ the Division Bench had held the remittance of enhanced share value by certain members within 60 days of the adjourned date of election and inclusion of those members in the voters list to be proper. It is submitted that while relying on the judgment, the learned Single Judge had failed to note this crucial fact _._ The decision in _**Kadakom Service Co-operative Bank ltd. v. Narayana Bhat**_ [2004 (2) KLT 179] is pressed into service to canvass the position that failure to pay the additional share value will not entail in removal of membership and the only effect of such failure is that until payment is made, the member will not be entitled to exercise any of the rights of a member. _**K.Jaya Varma v. Returning Officer**_ [1999 (2) KLT 826] is cited in support of the proposition that a person admitted to the membership of a Society prior to 60 days of the election and who has paid the entire dues before 30 days (as it stood earlier) of the election is entitled to vote. It is contended that the democratic principles on which the co-operative movement is founded envisage maximum _**WA.2394, 2395 & 2396/19**_ 10 participation of its members in the affairs of the society and that this avowed objective would be defeated by conducting an election without the participation of almost 40% of the members for the sole reason that they had not paid the enhanced share value prior to 60 days of the election. In support of this contention, the learned counsel relied on the decision in _**Koothali Service Co-operative Bank Ltd. v. Electoral Officer**_ [2012 (2) KHC 667 (DB)]. Objection is also raised against the very maintainability of the writ petition, in view of the effective alternative remedy of an election petition provided under Section 69 of the Act. The learned Counsel relies on the often cited decision of the Honourable Supreme Court in _**Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others**_ [(2001) 8 SCC 509] to contend that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India, shall not interfere with an election process and that preparation of electoral roll being an intermediate stage in the process of election to the Managing Committee of a Society, the entertainment of the writ petition itself was invalid. A further contention is raised regarding non-impleadment of the persons whose names were sought to be removed from the voters' list, they being the affected persons. Finally it is submitted that the whole dispute is rendered otiose by reason of the General Body having again amended the Bye-laws on 30-12-2018, by increasing the _**WA.2394, 2395 & 2396/19**_ 11 number of 'A' Class shares to 30000, while retaining the share value at Rs.50. It is submitted that by the subsequent amendment, the time limit for remittance of enhanced share value stands effaced. 7. The learned Senior Counsel appearing for the party respondents in two of the writ appeals and Sri.D.Somasundaranam, the learned Counsel appearing in the other, refuted the contentions urged on behalf of the appellants. The learned Senior Counsel contended that in _**Vasavan**_ 's case the Division Bench had interpreted Sections 19 and 20 and Rule 28 and had come to the definite conclusion that a member, who had not paid the enhanced share value prior to 60 days of the election is not entitled to vote. Drawing attention to the facts of that case, it is submitted that the bye-laws of that Society provided for payment of the enhanced share value in instalments and the instalments having been paid without default, the Division Bench had held those members to be having the right to vote. As against the contention regarding maintainability of the writ petition and non-impleadment of the affected persons, it is contended that the issue canvassed in the writ petition pertained to conduct of election in stark violation of the provisions of the Act and Rules and was not about the preparation of the voters list. Learned Counsel Sri.D.Somasundaram cited the decisions in _**Jose v. Registrar of Cooperative Societies**_ [1992 (2) KLT 673], _**Balakrishnan and another v. Returning Officer and Others**_ [1993 (1) KLJ 278] and _**Abdul**_ _**WA.2394, 2395 & 2396/19**_ 12 _**Karim and Others v. State of Kerala and Others**_ [2016 (1) KLJ 208] as authorities in support of the proposition that members of a Society will not be eligible to vote in the election to its Managing Committee, unless they acquire the requisite number of shares or pays the enhanced share value, as the case may be, 60 days prior to the election. 8. Sri.T.B.Hood, the learned Counsel appearing for the additional respondent in W.A. Nos. 2394 & 2395 of 2019 submits that pursuant to the impugned judgment, the Electoral Officer has published a revised final voters' list on 22.11.2019, after deleting more than 900 voters, including the additional respondent, thereby reducing the number of the voters in the final voters' list to 8324. According to the learned Counsel, in the notice issued to the members regarding the General Body meeting, in which among other items, the proposed amendment of enhancing the share value was to be discussed, it was specifically provided that the existing 'A' Class share holders would be intimated in writing about the time limit for payment of the enhanced share value. In the original minutes of the General Body also no time limit was fixed for payment of the enhanced share value. Later, a time limit of one year was incorporated in the minutes through interpolations having the effect of forgery. The learned Counsel contends that since members were not intimated of any time limit for payment, the remittance of enhanced share value by the additional _**WA.2394, 2395 & 2396/19**_ 13 respondent on 23.9.2019 was liable to be accepted. It is contended that irrespective of whether the share value is remitted in full or not, a member once admitted continues as such unless he is removed from membership in the manner prescribed under Section 17 of the Act and Rule 18 of the Rules. The learned Special Government Pleader supported the contentions urged on behalf of the appellants and the additional respondent. 9. The following facts and figures are not in dispute. The election notification was issued on 6.9.2019. As per the schedule of election, the preliminary voters' list was to be published on 23.9.2019, the final voters' list on 3.10.2019 and the polling was to be conducted on 27.10.2019. The election was adjourned vide order dated 5.10.2019 of the State Co-operative Election Commission, based on the Government order dated 4.10.2019. The adjourned polling was notified to be conducted on 8.12.2019. The preliminary voters' list published on 23.9.2019 contained 12084 voters, which got reduced to 9242 voters in the final voters' list published on 3.10.2019. 10. The process of election, up to the publication of the final voters' list, having been completed before adjournment of the election, the dispute is limited to the question as to whether another 918 members, who had remitted the enhanced share value within 60 days of 27.10.2019, but prior to 60 days of 8.12.2019, are entitled to be included in the final voters' list and to participate in the election. For _**WA.2394, 2395 & 2396/19**_ 14 answering this question, we look into relevant provisions of the Act and the Rules. 11. Member of a Society, as defined under Section 2(l), is a person joining in the application for the registration of a Co-operative Society or a person admitted to membership after such registration in accordance with the Act, the Rules and the Bye-laws and includes a nominal or associate member. Section 17 deals with the expulsion of a member for the reasons stated therein and Rule 18 prescribes the procedure for such expulsion. As per Section 19, no member of a Society shall exercise the rights of a member unless he has made such payments to the Society in respect of membership or has acquired such interest in the Society, as may be prescribed by the Rules or the Bye-laws. Section 20 ensures that notwithstanding anything contained in any other provision of the Act or any other law, every member of a Society shall have one vote in the affairs of the Society, but a member admitted within 60 days immediately prior to the date of election shall not have the right to vote. Rule 20 details the payments to be made to acquire the rights of a member, which include the subscription to share capital and any other payments required to be paid under the bye-laws. Rule 26 prohibits admission of members or approval of the transfer of shares within 60 days of the date of election and further stipulates that any person admitted as member in contravention of the Rule shall not have the right to membership or the right to vote at the _**WA.2394, 2395 & 2396/19**_ 15 election. As per Rule 28, no member of a Society shall be 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 byelaws of the Society of which he is a member. 12. From a conjoint reading of the provisions the position that emerge is that, once a person is admitted to the membership of a Cooperative Society, he continues to be a member unless expelled in the manner prescribed. Even though every member has the right to vote, that right is subject to satisfaction of the conditions under Sections 19 and 20, as well as Rules 26 and 28. The conditions being that, the member was admitted prior to 60 days of the date of election and that the member has made such payments to the Society in respect of the membership. Hence, even though every voter should be a member, every member need not necessarily be a voter. 13. Rule 35A is a compendium of the procedure for conduct of election to the Managing Committees of the Society under the aegis of the State Co-operative Election Commission. As per Rule 35A(4), an Electoral Officer is to be appointed, who shall be responsible for the publication of the list of members qualified to vote at the election in accordance with the provisions of the Act, Rules and Bye-laws, as it stood on a date 60 days prior to the date fixed for the poll. The eligibility to vote at the election being dependent on the member _**WA.2394, 2395 & 2396/19**_ 16 having been admitted to membership prior to 60 days of the election and having remitted the required share value, the Electoral Officer is enjoined to publish the list of only such members qualified to vote at the election. Once such a list is published then it becomes the duty of the Chief Executive of the concerned Society to prepare and update the list as per the Rules and submit the voters' list duly approved by the Committee to the Electoral Officer, on receipt of which the Electoral Officer has to publish the preliminary voters' list. Therefore, the basic data on which the preliminary voters' list is published, is the list of members qualified to vote at the election. The preparation or updating by the Chief Executive of the Society, of the list of qualified voters published by the Electoral Officer, and the preparation of the preliminary voters' list by the Electoral Officer, based on the updated list submitted by the Chief Executive of the Society, do not permit either the Chief Executive or the Electoral Officer to tamper with the list of members qualified to vote as on a date 60 days prior to the poll, by adding the names of the members who had remitted the share value within the 60 days. The process of publishing the list of members qualified to vote having been concluded on the basis of the notification fixing the date of polling as 27.10.2019, there cannot be any further inclusion to the list, on the excuse that the date of polling was adjourned subsequently. _**WA.2394, 2395 & 2396/19**_ 17 14. The legal position being as above, we proceed to consider the authorities cited by the learned Counsel on either side. 15. The challenge against maintainability of the writ petitions is raised on the ground that Section 69 of the Act provides an efficacious alternative remedy by way of an election petition, to be filed within 30 days of declaration of the result. In support of this contention, reliance is placed on _**Shri Sant Sadguru.**_ In _**Shri Sant Sadguru**_ , the challenge was against publication of final electoral roll, without considering the objections against the provisional electoral roll. It was contended that the electoral roll being the substratum of the election for constituting the Managing Committee and the same not having been prepared and finalised in accordance with the mandatory rules, an election held on such electoral roll is liable to be set aside. The Honourable Supreme Court found the preparation of electoral roll to be part of the election process and held that breach of the rules in preparing the electoral roll, should be called in question by means of an election petition before the Tribunal and not in a proceeding under Article 227. As far as the instant case is concerned, the legal issue that was considered was with respect to the right of a member, who had failed to pay the full subscription to share capital for acquiring the right to vote prior to 60 days of the election, to be included in final voters' list. The question canvassed in the writ petition and considered by the learned Single Judge being a pure question of law, the challenge _**WA.2394, 2395 & 2396/19**_ 18 against the maintainability of the writ petition, based on the decision in _**Shri Sant Sadguru**_ , has to fail. The learned Single Judge also did not interdict the election after the procedure had commenced and reached the stage of finalisation of voters list. The learned Single Judge only ensured that the election is proceeded with in accordance with the Act and Rules. We also do not intend to interdict the process of election mid way. 16. In _**Vasavan**_ , 50 persons had submitted their application for membership in the society on 4.1.1992 and had remitted Rs.14/towards partial subscription of the share capital on the same day and were admitted as members on 4.1.1992 itself. The bye-laws of that Society provided for remittance of the share capital of Rs.50/- in instalments. The balance amount of Rs.36/- was remitted by the 50 persons on 28.7.1992 and the election notification was issued on 31.7.1992, fixing the date of election as 16.9.1992. Thereafter, the election was postponed and held on 29.11.1992. The contention raised was that, as the share capital was not fully paid by the 50 persons on the date on which they made their application for admission and had paid the share capital in instalments, before the prohibited period of 60 days of the election, they would not be entitled to be admitted as members. After analysing Rules 16, 20, 26 and 28, the Division Bench held that the words 'subscription to share capital' in Rule 20 do not mean payment of the entire share capital, especially _**WA.2394, 2395 & 2396/19**_ 19 since the bye-laws of that Society permitted payment of the share capital in instalments. It was held that as the bye-laws of that Society permitted payment of share capital in instalments, and such requirement having been complied with, the membership would commence from the date on which the requisite first instalment was remitted, which in that case was 4.1.1992; when the 50 persons were admitted to the membership. Dilating on Rule 28, it was held that the Rule merely deals with the right to vote. The relevant portion of the discussion in _**Vasavan**_ is as follows:- _“10. In our view, R.28 merely deals with the right to vote. The right to vote must be distinguished from admission as a member. While R.16 and 20 deals with conditions for admission, R.26 deals with prohibition for admission to membership within a particular period. R. 16 and 20 go together. R.26 and R.28 are applicable to different situations, as stated above. Therefore for the purpose of R.28, a person may still be a member, even before he acquires a right to vote. Such a right to vote accrues on payment of the full share capital. If the full payment falls within the period mentioned in R.28, he cannot vote at any meeting falling within 30 days of such payment._ In conclusion, taking into consideration the fact that the 50 persons were admitted to membership on 4.1.1992, which was beyond 60 days from the original date of election scheduled on 16.9.1992, it was held that there was no violation of Rule 26, inasmuch as those 50 persons had paid the share capital by 28.7.1992, which was far beyond 30 days before the date of election, as was provided in Rule 28 then. _**WA.2394, 2395 & 2396/19**_ 20 Immediately we notice that Rule 28 as it exists now restricts, or rather confers the right to vote to those who had acquired the membership prior to 60 days of the date of election. The facts of the instant case are entirely different. No one has a case that the bye-laws of the Society provide for remittance of share capital in instalments, nor is it contended that the enhanced share capital was remitted on a date beyond 60 days of the election as originally notified. In such circumstances, the fact that in _**Vasavan**_ , the Division Bench had permitted the members therein to participate in the election cannot have any persuasive effect while deciding the case at hand. On the other hand, in _**Vasavan**_ , the Division Bench had clearly opined that right to vote accrues on a member only on payment of the full share capital. 17. In _**Kadakam S.C.B Ltd.**_ , the question was regarding the entitlement of a member to remit the enhanced share value beyond the time prescribed and as to whether failure to remit the amount within the prescribed time limit would result in automatic loss of membership. The question was answered by the Division Bench with reference to Rule 16, holding that failure to pay the additional share value, will not entail an automatic loss of membership and a resultant compulsion to apply for fresh membership. It was also held that, the only effect of failure to pay the additional share value is that, until such payment is made, the member will not be entitled to exercise _**WA.2394, 2395 & 2396/19**_ 21 any of the rights of a member of the Bank. If there could be no exercise of the rights of membership on failure to pay the enhanced share value, as a corollary it can be held that for exercising the right to vote or to be included in the final voters list the payment should have been made 60 days prior to the election as provided in the Act and Rules. 18. In _**Koothali S.C.B Ltd.**_ , the Division Bench considered the impact of the share capital being enhanced without adequate publicity. On facts, it was found that 90% of the members were excluded from the voters' list by keeping them in the dark about the enhancement, by publishing the notification regarding the enhanced share capital in two relatively unknown newspapers, which admittedly did not have wide circulation within the area of operation of the Society. It was in such circumstances that the Division Bench held the democratic scheme of the management of societies to have been defeated by keeping 90% of the members out of the voters' list and hence, a direction issued to give due publicity and to draw up a voters' list after giving one month's time to the members to remit the enhanced amount. 19. Even though the learned Counsel for the appellants and the additional respondent have contended that due notice regarding the time limit for payment of the enhanced share capital was not given to the members, that issue cannot be agitated in these proceedings, _**WA.2394, 2395 & 2396/19**_ 22 since five years have elapsed after the amendment and no objection was raised before the authorities under the Co-operative Societies Act or even before the Electoral Officer. Admittedly notices were issued after the enhancement of share value. Though it is contended that the notices did not contain the stipulation for payment of enhanced share value within one year it is also argued that the stipulated period was by an interpolation not recorded at the time of the General Body Meeting. Whatever that be; we would for the present accept that even if there is a stipulation for payment of the enhanced value within one year; the non payment within that period would not affect the membership, if it has not been cancelled. But to enable a member to figure in the final voters list and thus become a voter entitled to exercise his franchise such payment of enhanced value should be made at least 60 days prior to the date of election. There can be no prejudice alleged by a member who, despite receipt of notice failed to pay the enhanced share value in the five year period after such notice and paid it up only within 60 days of the election notified. 20. _**K. Jaya Varma v. Returning Officer**_ [1999 (2) KLT 826] again considered Rule 26 and Rule 28; the latter as it stood then, requiring the entire share capital to be paid within 30 days. It was held categorically that any person admitted to the membership beyond 60 days of the election and who paid up the share capital within 30 days cannot exercise the right of franchise. As a corollary a person _**WA.2394, 2395 & 2396/19**_ 23 admitted to the membership within 60 days of election or who failed to pay up the share capital within 30 days cannot. The attempt made by Sri.Hood to categorise the restriction as applying to only new members fails in the face of Rule 28 which mandates the acquisition of shares as required under the bye-laws. Those members, who prior to enhancement, do not pay up the entire share capital, cannot be said to have acquired the required shares. 21. In _**Jose**_ and _**Balakrishnan**_ , a learned Single Judge held that a member has no right to be included in the voters list without paying the enhanced share capital. In _**Abdul Karim**_ , it was held that a member of a Bank shall not be eligible to vote at the meeting of any election to the Committee of a Bank, unless he acquires requisite number of shares prior to the time limit (60 days) for such meeting. We approve the aforesaid decisions. In _**Rajan V. Electoral Officer**_ , the question considered was as to whether the society was bound to issue individual notices as contemplated under Section 11(2), when it enhances the share value. The answer was in the negative, which decision may not have any application as far as the present case is concerned. 22. On a careful scrutiny of the authorities, we find that the courts were in unison in holding that only a member, who had paid the entire share capital prior to 60 days of the election, could be a qualified voter. Neither _**Vasavan**_ nor _**Kadakom S.C.B.**_ propound a different proposition. _**WA.2394, 2395 & 2396/19**_ 24 23. The answer to the contention of the learned Counsel for the appellants, based on the subsequent amendment brought about to the bye-laws in the General Body meeting held on 30.12.2018, is available from Section 12 of the Act itself. Sub-section (3) of Section 12 mandates that the Registrar shall forward to the Society a copy of the registered amendment together with a certificate of registration signed and sealed by him, and such certificate shall be conclusive evidence that the amendment has been duly registered. Merely because an amendment was approved by the General Body, that does not bring about an amendment to the existing bye-laws, unless and until the same is approved by the Registrar of Co-operative Societies and a certificate of registration issued under Section 12(3) of the Act. 24. Yet another contention raised was that the election having been now scheduled to a later date, the rigour of the provisions for payment of entire share capital prior to 60 days of the election has to be determined from the present date scheduled. We notice the contention only to reject it since the adjournment directed by the State was only for smooth conduct of election, especially since there were bye-elections scheduled in the constituencies where the Society is situated. The adjournment was only of the election, which is the actual polling and not the procedures contemplated for holding the election. It is also pertinent that the final voters list was published before the date on which the Government adjourned the election. What remained _**WA.2394, 2395 & 2396/19**_ 25 was only the polling and the Electoral Officer has to commence from the stage at which it stood adjourned, as held in _**Abubaker v. Kunhavaran**_ [1983 KLT 995]. 25. The facts, the provisions and the precedents as discussed above, lead to the definite conclusion that only members who have remitted the entire share capital, necessary for exercising all the rights of a member, as on a date 60 days prior to the election, are entitled to get their names included in the list of qualified voters published by the Electoral Officer under Rule 35A(4) and consequently in the preliminary and final voters' list, subject to their satisfying the other requirements under the Act and the Rules. 26. It is not in dispute that in terms of the directions contained in the impugned judgment, the Electoral Officer published a revised final voters' list, removing the names of members who had remitted the share capital within 60 days of the election. In that process, the names of 918 persons was removed from the final voters list published on 3.10.2019. After removal, the final voters' list contains 8324 voters. Taking into consideration the contention that the 918 persons removed from the voters' list never got an opportunity to either object their removal or to substantiate their continuance in the voters' list, it is only appropriate that they are also permitted to provisionally participate in the election; subject however to their disqualification as held by us; if they were either admitted to the membership or paid up _**WA.2394, 2395 & 2396/19**_ 26 the enhanced share value within 60 days of the original schedule of the election ie: within 60 days of 27.10.2019. In the result, the the following directions are issued: - i. It is declared that those members who were admitted or had paid the enhanced share value within 60 days of the election, as originally notified, are not entitled to be included in the voters list or eligible to exercise their franchise. - ii. The election shall be conducted on 8.12.2019, as notified. - iii. The 918 members, whose names were removed from the voters' list pursuant to the impugned judgment will be allowed to cast their vote, but the same kept in separate ballot box and counted separately. - iv. The result of the election will be declared by counting the votes cast by the 8324 voters included in the revised final voters' list published by the Electoral Officer on 22.11.2019. - v. After declaration of result of the election, the ballot papers of the 8324 and 918 voters should be kept separately. - vi. It will be open for the persons from among the 918 members to challenge their removal from the final _**WA.2394, 2395 & 2396/19**_ 27 voters' list, in a properly constituted election petition; if the votes so separately polled makes any substantial difference to the election result. vii. If election petition is filed, the Co-operative Arbitration Court shall decide the petition on merits, which can _inter alia_ be only on the eligibility of the 918 members on grounds of admittance to membership and remittance of full share capital having been made prior to 60 days from the originally scheduled election date. However, the declaration made hereinabove shall govern the adjudication. Writ Appeals are dismissed with the above directions, leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgsx_ _**WA.2394, 2395 & 2396/19**_ 28 ## **APPENDIX OF WA 2394/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF RESOLUTION DATED 10.10.2019** _**WA.2394, 2395 & 2396/19**_ 29 ## **APPENDIX OF WA 2395/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF RESOLUTION DATED 10.10.2019** _**WA.2394, 2395 & 2396/19**_ 30 ## **APPENDIX OF WA 2396/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF RESOLUTION DATED 10.10.2019**