Koliyoor Service Co-operative Society Ltd & The Administrative Committee in Koliyoor Service Co-operative Society Ltd v. C.K. Vijayan & Others (WA No. 543 of 2022) before the High Court of Kerala, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** ## **WA NO. 543 OF 2022** ## **AGAINST THE ORDER/JUDGMENT WP(C) 4149/2022 OF HIGH COURT OF KERALA** ## **APPELLANTS:** 1 KOLIYOOR SERVICE CO-OPERATIVE SOCIETY LTD 2665, KOLIYOOR, MUTTAKKAD P O, THIRUVANANTHAPURAM DISTRICT, PIN695523, REPRESENTED BY ITS SECRETARY. 2 THE ADMINISTRATIVE COMMITTEE IN THE KOLIYOOR SERVICE CO-OPERATIVE SOCIETY LTD 2665, KOLIYOOR, MUTTAKKAD P O, THIRUVANANTHAPURAM DISTRICT, PIN-695523, REPRESENTED BY ITS SECRETARY. BY ADV I.VINAYAKUMARI ## **RESPONDENTS:** |1|C.K. VIJAYAN.,| |---|---| ||AGED 61 YEARS| ||S/O CHELLAPPAN NADAR, MEMBER NO.8275, KOLIYOOR SERVICE CO-| ||OPERATIVE SOCIETY LTD NO.2665, RESIDING AT S. R NIVAS,| ||POONKULAM, VELLAYANI POST, THIRUVANANTHAPURAM-695522.| |2|THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)| ||OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,| ||THIRUVANANTHAPURAM-695014.| |3|THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),| ||JAWAHAR SAHAKARANA BHAVAN, JAGATHY, THIRUVANANTHAPURAM-| ||695014.| |4|THE STATE CO-OPERATIVE ELECTION COMMISSION| ||CO-BANK TOWERS, PALAYAM, THIRUVANANTHAPURAM-695033.| |5|THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES| ||(GENERAL),OOTTUKUZHI, THIRUVANANTHAPURAM-695001.| ||*ADDL.R6 IMPLEADED.| |6|ADDL.R6:STATE OF KERALA.| ||REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,CO-| ||OPERATION DEPARTMENT,GOVERNMENT| ||SECRETARIAT,THIRUVANANTHAPURAM-695001.| *IS SUO MOTU IMPLEADED AS ADDITIONAL R6 IN WA 543/22 VIDE ORDER DATED 5/8/22. BY ADV SRI.SADCHITH P.KURUP (B/O) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, ALONG WITH WP(C).34941/2016, 35617/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** **WP(C) NO. 34941 OF 2016** ## **PETITIONERS:** 1 V.RAVEENDRAN NAIR AGED 70 YEARS S/O VELAPPAN NAIR,RAJI NIVAS,MUTTACAUD.P.O,THIRUVANANTHAPURAM. 2 R.K.PANKAJAKSHAN R.K.SADANAM,POONKULAM,VELLAYANI.P.O,THIRUVANANTHAPURAM. 3 K.KRISHAVENI VALIYAPAMPADI,POONKULAM,VELLAYANI.P.O, THIRUVANANTHAPURAM. 4 K.CHANDRAN VILAYIL VILAKOM VEEDU,KEEZHOOR,KILIYOOR,MUTTACAUD.P.O, THIRUVANANTHAPURAM. 5 SHEEJA.B VISHNU NIVAS,PAPPANCHANI,VELLAYANI.P.O, THIRUVANANTHAPURAM. 6 T.PHILOMINA ASWATHY,KOLIYOOR,MUTTACAUD.P.O,THIRUVANANTHAPURAM. BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## **RESPONDENTS:** 1 THE KOLIYOOR SERVICE CO-OPERATIVE BANK LTD. REPRESENTED BY ITS SECRETARY-INCHARGE,KOLIYOOR,MUTTACADU,THIRUVANANTHAPURAM-695523. 2 THE PART TIME ADMINISTRATOR KOLIYOOR SERVICE CO-0PERATIVE BANK LTD.NO.2665,KOLIYOOR,MUTTACADU,THIRUVANANTHAPURAM-695523, (UNIT INSPECTOR,MANACAUD,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM). 3 THE RETURNING OFFICER KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.2665,KOLIYOOR,MUTTACADU,THIRUVANANTHAPURAM-695523, (UNIT INSPECTOR,MANACAUD,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM). 4 THE ELECTORAL OFFICER THE RETURNING OFFICER,KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.2665,KOLIYOOR,MUTTACADU,THIRUVANANTHAPURAM-695523, (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),THIRUVANANTHAPURAM). 5 THE STATE CO-OPERATIVE PUTHENVEEDU PALAPPORU,VELLAYANI.P.O,THIRUVANANTHAPURAM-695522. 6 A.ANIL KUMAR, CHARUVILA PUTHENVEEDU, PALAPPORU, VELLAYANI P.O., THIRUVANANTHAPURAM. 7 ADDL.R7. PRINCIPAL SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 IS SUO MOTU IMPLEADED AS PER THE ORDER DATED 05.08.2022 IN WPC. BY ADVS. SMT.M.BINDU DAS SRI.R.T.PRADEEP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, ALONG WITH WA.543/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** ## **WP(C) NO. 35617 OF 2016** ## **PETITIONER:** K. GOPALAKRISHNAN NAIR, AGED 52 YEARS VADAKKEVARYA VEEDU, THIRUVALLAM, THIRUVANANTHAPURAM. BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI **RESPONDENTS:** 1 KOLIYOOR SERVICE CO-OPERATIVE BANK LTD NO.2665 REPRESENTED BY SECRETARY IN CHARGE, KOLIYOOR, MUTTACADU, THIRUVANANTHAPURAM-695 523. 2 THE PART-TIME ADMINISTRATOR KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.2665, KOLIYOOR, MUTTACADU, THIRUVANANTHAPURAM-695 523, UNIT INSPECTOR, MANACAUD, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM-695 523. 3 THE RETURNING OFFICER KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.2665,KOLIYOOR, MUTTACADU, THIRUVANANTHAPURAM-695 523,UNIT INSPECTOR, MANACAUD, OFFICE OF THE ASSISTANTREGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),THIRUVANANTHAPURAM-695 523. 4 THE ELECTORAL OFFICER KOLIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.2665,KOLIYOOR, MUTTACADU, THIRUVANANTHAPURAM-695 523, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),THIRUVANANTHAPURAM. 5 THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2022, ALONG WITH WA.543/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 1: _-_ ## **ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.** ================== ## WA No.543/2022 _(arising out of the judgment dated 04.04.2022 in WP(C) No.4149/2022)_ WP(C) No.35617/2016 WP(C) No.34941/2016 ================== Dated this the 5[th] day of August, 2022 ## **J U D G M E N T** ## **ALEXANDER THOMAS, J.** These cases are disposed of on the basis of this common judgment as the cases are factually and legally inter-related. 2. Writ Appeal No.543/2022 arises out of the impugned judgment rendered by the learned Single Judge on 04.04.2022, disposing of the Writ Petition (Civil) WP(C) No.4149/2022, with the direction that the 2[nd] respondent therein (Registrar of Co-operative Societies) shall ensure that the respondent Co-operative Society adopts resolution for the conduct of election to its Managing Committee without any further delay and to take necessary steps for having the election conducted at the earliest at any rate within a period of three months from the date of the judgment. 3. The prayers in the said Writ Petition (Civil) WP(C) WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 2: _-_ ## No.4149/2022 are as follows: _“A. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 2 to 7 to take necessary steps to conduct election to the managing committee of the 1[st] respondent society as directed by this Hon'ble court in Ext.P5 judgment by notifying the elections on the basis of Ext.P3 voters list, within a time limit to be prescribed by this Hon'ble Court._ _B. Grant such other reliefs, which are deemed fit and proper in the facts and circumstances of the case.”_ ## 4. WP(C) No.34941/2016 has been filed by some members of ## the very same Co-operative Society concerned, with the following ## prayers. _“(i) to issue a writ of certiorari calling for the records leading to the issuance of Ext.P7 notification and quash the same to the extent it has notified the election to be held from the stage of objection to the preliminary voters list;_ _(ii) to issue a writ of mandamus or any other writ, order or direction, to declare that the proceedings for election to the managing committee of the 1[st] respondent society, up to the publication of final list of candidates having been completed pursuant to Ext.P1 notification, the 5[th] respondent is empowered to notify only the date of polling;_ _(iii) to issue a writ of mandamus or any other writ, order or direction directing the 5[th] respondent to re-notify the election to the managing committee of the 1[st] respondent society by notifying the date of polling as 09.12.2016._ _(iv) to grant such other reliefs as this Hon'ble Court may deem fit in the circumstances of this case._ ## 5. WP(C) No.35617/2016 has been filed by another member ## of the same Co-operative Society, with the following prayers: _(i) call for the records leading to issue Ext.P8 and quash the same by issuing a writ of certiorari or any appropriate writ order or direction._ _(ii) issue a writ of mandamus or any other appropriate_ WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ **==> picture [23 x 9] intentionally omitted <==** _writ order or direction directing the first and second respondents to convene the general body as provided in Section 29(1)(ce) to declare the election and to conduct election afresh in the light of Ext.P7 notification issued by the Government of Kerala._ _(iii) Declare that in the light of Ext.P7 all the members are entitled to vote in the election._ _(iv) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case._ 6. Heard Smt.I Vinayakumari, learned Counsel appearing for the appellants in WA No. 543/2022, as well as for the respondent Cooperative Society in the WP(C)s, Sri.C.M.Nazar, learned Standing Counsel for the State Co-operative Election Commission appearing for the respondent Co-operative Election Commission, Sri.T.K.Vipindas, learned Sr.Government Pleader appearing for the official respondents in these cases, Sri.P.N.Mohanan, learned Counsel appearing for the petitioner in WP(C) No.35617/2016, Sri.T.R.Harikumar, learned Counsel appearing for the petitioners in WP(C) No.34941/2016 and Sri.Sadchith.P.Kurup, learned Counsel appearing for the contesting respondent in WA No.543/2022. 7. This Court had granted interim order on 02.11.2016 in WP(C) No.34941/2016, whereby the election to the Managing Committee of the said Co-operative Society, notified in terms of election Notification dated 25.10.2016 (Ext.P7 in that WP(C)), was ordered to be stayed and the said stay order has been in force since then. WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 4: _-_ Hence, the appellants in WA No. 543/2022 (the Co-operative Society concerned and its Administrative Committee), submitted that they are not in a position to comply with the directions of the learned Single Judge in WP(C) No.4149/2022, on account of the stay order granted in WP(C) No.34941/2016. Hence, at the request of all the parties concerned, we had called for the latter two cases as well to be disposed of along with this Writ Appeal. Earlier, the election to the Managing Committee of the Co-operative Society was notified as per Election Notification dated 25.10.2016, which has been produced as Ext.P7 in WP(C) No.4149/2022 and WP(C) No.34941/2016 and as Ext.P8 in WP(C) No.35617/2016. It appears that, pursuant to the aforesaid modified Election Notification dated 25.10.2016, provisional voters' list was published and we are told that no further steps could be taken thereon, in view of the interim stay order granted by this Court in WP(C) No.34941/2016, which has been in force since 02.11.2016 onwards. Earlier, in relation to the very same Co-operative Society, issues relating to the applicability of the amended provisions of the KCS Act, as per Section 16A and Section 19A and also the provisions of the amended Rule as per Rule 18A, was the subject matter of consideration of the decision rendered by a Full Bench of this Court WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ **==> picture [23 x 9] intentionally omitted <==** in the case in **Pradeep vs. Kerala State Co-operative Election Commission** (Decision dated 25.07.2016 rendered by the Full Bench in WA No . 580, 741, 1457 of 2015 and certain other WP(C)s). The abovesaid amendments related to the rights and liberties of the persons to continue as members of the Co-operative Societies and in the matter of exercise of their rights, including the right to vote in the election to the Board of Directors/Managing Committee of Cooperative Societies. An incidental issue was also raised as to the nature and operation of the said amended provision as to whether it is prospective or retrospective in operation. The Full Bench held in **Pradeep's case** (supra) [2016 (3) KLT 551 (FB)] that, on the close of the Co-operative year 2014-15, the amended provisions of the Act and the Rules have become fully operative , i.e., from 31.03.2015 onwards. The plea that the provisions stipulated in the qualifications to continue as a member and also to exercise the rights of a member, including the right to vote, will become operative only after two years after 26.07.2014 (date of coming into force of the above Rule 18A) is unsustainable and was repelled by the Full Bench. It was held that the eligibility of the members, who cast their votes, has to be assessed with reference to the position as on the date of the close of the Co-operative WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 6: _-_ year, after the commencement of Rule 18A on 26.11.2014, i.e., on 31.03.2015 and it was thus held that the amended provisions of the Act and the Rules have become fully operative in all respects on the close of the Co-operative year 2014-15, i.e, on 31.03.2015 onwards. It was further held that, in respect of cases where preliminary voter's list/final voter's list were published prior to 31.03.2015, then the elections will have to be held based on the unamended provisions etc. Further, it was held that where election notification was issued prior to 31.03.2015 and where the preliminary voter's list was published after 31.03.2015, then the proceedings could be pursued assessing the rights of the members concerned to get included in the voter's list, based on the amended provisions of law etc. The Writ Appeals covered by the Full Bench matter were disposed of and the Writ Petitions (Civil) concerned were remitted to the learned Single Judge to decide, based on the declaration of law made by the Full Bench in the above matters. 8. Later, the learned Single Judge has rendered the judgment on 11.08.2016, disposing of those Writ Petitions (Civil) as in WP(C) No.17041/2016 and connected cases (which has been produced as Ext.P5 in WP(C) No.4149/2022). The learned Single Judge, after taking note of the legal position settled by the Full Bench WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 7: _-_ in the aforesaid decision, directed that, taking into account the law laid in **Pradeep's case supra** , [2016 (3) KLT 551 (FB)], directed that there will be a direction to the respective authority in office of the Cooperative Societies to ensure that proceedings and steps are taken in accordance with the directives issued by the Full Bench, taking note of the cut off date, 31.03.2015 and further steps shall be taken in terms of the directives contained in the Full Bench Judgment and from the stage at which they are at. Further that, if during the pendency of those writ petitions, elections were conducted in any society, any person aggrieved thereby is at liberty to seek remedy by filing suitable election petitions and in societies wherein elections were notified and did not take place, shall take place and pass appropriate resolution and forward the same to the appropriate statutory authority, in accordance with law, at the earliest and within three weeks etc. The afore decisions of the Full Bench rendered on 25.07.2016 in WA No.741/2015 & WP(C) No.26129/2014 were impugned in SLP(C) 27046/2016 before the Apex Court. That SLP was disposed by the Apex Court, as per final order dated 17.10.2016 (produced as Ext.P6 in WP(C) 35617/2016), which reads as follows: WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 8: _-_ _“The learned Counsel appearing for respondent Nos.1 and 5 submits that the election would be conducted only after 26.11.2016. If that be so, there is no room for any grievance to be raised by the petitioners._ _Let the election be conducted in accordance with amended Rules after 26.11.2016._ _Needless to say that the whole process will be initiated afresh as per the amended Rules after 26.11.2016._ _The Special Leave Petition is disposed of._ _Pending applications(s) shall stand disposed_ _of.”_ 9. It is also pertinent to note that the State Government had issued statutory notification, as per SRO No.643/2016 dated 15.10.2016, whereby it has been inter-alia ordered by the State Government in exercise of their powers under Section 101 of the KCS Act, that all the Co-operative Societies, which are affected by Section 16A(1) and Section 19A of the KCS Act, will stand exempted from those provisions for a further period of one year, one month and fourteen days from 01.01.2016. A copy of the said SRO No.643/2016 dated 15.10.2016 published in Kerala Gazette dated 18.10.2016 has been produced as Ext.P7 in WP(C) No.35617/2016. Hence, it can be seen that, by virtue of the statutory operation of SRO No.643/2016, issued under Section 101 of the KCS Act, the abovesaid amended provisions were not applicable to the affected Co-operative Societies, like the present Co-operative WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 9: _-_ Society, for a period of one year, one month and fourteen days from 01.01.2016, i.e, upto 14.02.2017. Later, the Legislature enacted amendments to the KCS Act, whereby the provisions contained in Sections 16A and 19A of the KCS Act (which were earlier introduced in the statute book on 14.02.2013) have been subsequently deleted from the statute book with effect from 10.04.2017. So also, the amended Rule, viz, Rule 18A was also deleted from the statute book with effect from 30.12.2017. Further, in view of the stay order granted by this Court in WP(C) No.34941/2016, which was in force from 02.11.2016, elections could not be conducted at all, though the initial election notification and the subsequent modified election notification were issued on 29.06.2015 and 25.10.2016, respectively. 10. One of the issues to be decided is as to on what basis the provisional voter's list and the final voter's list should be published for the conduct of election to the present Co-operative Society. The amended provisions have already been deleted from the statute book. The stay order issued by this Court was in force from 02.11.2016 onwards. SRO No.643/2016 led to the situation that the amended provisions were not applicable to the instant Co-operative Society, even otherwise, for the period till 14.02.2017. The administrative committee WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ **==> picture [29 x 7] intentionally omitted <==** has been continuing for a very long time in this case. So, there is no question of prolonging the process of election, and the same has to be completed without any further delay. In view of these aspects mentioned herein above, it may not be feasible to conduct election in accordance with the directions issued by the learned Single Judge in the impugned judgment dated 04.04.2022 in WP(C) No.4149/2022 (which has led to the present WA No.543/2022), in pursuance of the aforesaid modified election notification dated 25.10.2016. 11. Hence, we suggested to all the parties concerned, whether it could be directed that a fresh decision be taken by the Administrative Committee of the appellant Co-operative Society for the conduct of the election and send the requisition to the State Election Commission through the Assistant Registrar concerned, so that the election is notified without any further delay and the whole process of election is conducted and completed within three months and the provisional voter's list and the final voter's list shall be prepared on the basis of the law, as it stands now as per which Sections 16A and 19A have already been deleted from the statute book with effect from 10.04.2017. All the parties suggested in unison that the abovesaid course of action is the WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 11: _-_ only legally feasible way to conduct the election for the abovesaid Cooperative Society. 12. Further, Sri.Sadchith.P.Kurup, learned Counsel appearing for the contesting respondent in WA No. 543 of 2022/writ petitioner in WP(C) No.4149/2022, would submit that the management of the abovesaid Co-operative Society was under an administrator for some time and thereafter under the present administrative committee for a very long time and that the administrator as well as the subsequent Administrative Committee have enrolled very many new members, purportedly granting them voting rights and that therefore, this Court should also order that the provisional voter's list and the final voter's list shall not contain the names of any such members enrolled by the administrative committee. There does not appear to be serious objections to the said plea made by the contesting respondent in WA No.543/2022. The legal position, regarding the competence of an administrator or Administrative Committee to enroll new members with voting rights, is no longer _res integra_ . The Apex Court in the decision in **Joint Registrar of Co-operative Societies vs. T.A.Kuttappan** [(2000) 6 SCC 127=AIR 2000 SC 2378] has conclusively held that the WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 12: _-_ administrator or the Administrative Committee has got no power to enroll new members to a Co-operative Society and that the Co-operative Society is to function in a democratic manner and the elected managing committee of the Co-operative Society alone is empowered to enroll such new members with voting rights. Further, in the decision in **Prakashkumar vs. State Co-operative Election Commission** [2014 (1) KLT 68], it has been held by this Court that the power to enroll members is definitely conferred exclusively on the democratically elected managing committee and the mere reason that the Cooperative Society has 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 has continued, confer any authority on the Administrator or Administrative Committee to enroll new members with voting rights and then on ratification by the General Body to grant the right to such members to exercise franchise. The Full Bench of this Court in decisions, as in **Hassan Vs. Joint Registrar of Co-operative Societies** (1998 (2) KLT 746 (FB)), and **Cherthala Agricultural Rural Development Bank Vs. Joint Registrar** (2000 (1) KLT WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 13: _-_ 730), has also categorically laid out the same legal position regarding the lack of competence of the administrator or the Administrative Committee to enroll new members with voting rights and that could be against the very democratic composition of the Co-operative Societies etc. These aspects have also been re-iterated in a recent decision of the Division Bench of this Court in the case Ravindran K & Others Vs. Stae of Kerala & Others (ILR 2022 (1) Kerala 669) (paragraph 24 & 25) etc. To a specific query as to whether either the Administrator or the Administrative Committee of the above Co-operative Society has enrolled new members, we could not get any specific reply in that regard, presumably, as the Counsel for the appellant may not have been furnished with factual instructions in that regard. Hence, in view of the above said conclusive legal position, it is only to be held that the provisional voter's list and the final voter's list, to be prepared in the instant case, should not contain the names of any of the new members enrolled, either by the Administrator or the Administrative Committee, and such persons will not have any voting rights. Further, we would also order that since elections have to be conducted immediately and as there is no elected committee now, until the election is completed, it is WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ **==> picture [28 x 9] intentionally omitted <==** inevitable that the Administrative committee has to continue in office. Hence, it is ordered that the competent authority of the State Government will immediately issue notification, in terms of Section 101 of the KCS Act, exempting the above Co-operative Society from the rigor of the provisions of the KCS Act, more particularly, Section 33(1)(b) of the KCS Act, so as to enable the present Administrative Committee to continue in office for the limited purpose of conduct and completion of election process of the Managing Committee of the above Co-operative Society. We are told that the last of the notifications issued by the State Government, under Section 101, in respect of the present Co-operative Society, was as per SRO No.383/2022, published in Kerala Gazette dated 22.04.2022 (GO(P) No.47/2022/COOP dated 05.04.2022) and the Counsel for the appellants would point out that the said extended period is also now over. The learned Senior Government Pleader will immediately give necessary instructions and advise to the competent authority of the State Government in the Co-operation Department to issue notification, in terms of Section 101, to take care of this acute problem immediately. Further, we would order that, irrespective as to whether the competent authority of the State Government may or may WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 15: _-_ not issue such notification under Section 101, the present Administrative Committee will continue in office for the limited purpose of conduct and completion of election process of the Managing Committee and subject to the condition that they shall only be in charge of the day to day affairs of the Co-operative Society and that they shall not take any policy decisions and if any emergency is involved for taking any policy decision, it has to be done only with the concurrence of the Joint Registrar of Co-operative Societies (General), Thiruvananthapuram. Accordingly, the following directions and orders are passed:- (1) The appellant Administrative Committee will immediately pass a resolution fixing the date of the election to the Managing Committee of the afore Koliyoor Service Cooperative Society, so that the election is conducted as early as possible. In that regard, the Administrative Committee need not wait for any notification or orders from the State Government to be issued under Section 101 of the KCS Act, as above. Resolution, as above, shall be duly taken by the appellate Co-operative Society within one week from the date of receipt of a copy of this judgment. WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 16: _-_ (2) The appellant Administrative Committee will forward the abovesaid resolution, along with the formal request for conduct of election, as above, to the respondent State Co-operative Election Commission, through the jurisdictional Assistant Registrar of Co-operative Societies (General), immediately thereafter. (3) On receipt of the above resolution and the requisition, the Assistant Registrar of Co-operative Societies will forward the same to the respondent State Co-operative Election Commission within two days from the date of receipt of the resolution and the request, as above. Upon such receipt of the resolution and request for election, the respondent State Co-operative Election Commission will publish a fresh election notification and also the schedule of the conduct of election, also showing the various stages concerned, within ten days from the date of receipt of resolution, as above and intimate the same to the appellant Co-operative Society as well as to any other statutory functionaries, like the Assistant Registrar, Joint Registrar etc. (4) Thereafter, the Secretary of the appellant Cooperative Society shall forward the approved voter's list, WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ **==> picture [27 x 9] intentionally omitted <==** prepared by the Administrative Committee, to the electoral officer appointed by the respondent State Co-operative Election Commission. In that regard, the Administrative Committee shall exclude all persons enrolled by the Administrator or Administrative Committee, from the approved voter's list. (5) The Electoral Officer will thereafter publish the provisional voter's list and it shall also be ensured by that officer that the names of members enrolled by the Administrator or the Administrative Committee shall not be included in such voter's list. After inviting objections to the provisional voter's list, it is for the electoral officer to publish the final voter's list. We would re-iterate that the electoral officer will also ensure that no persons enrolled by the Administrator of the Administrative Committee shall be included in the final voter's list. 13. The election process, as above, shall be duly conducted and completed at the earliest, taking note of the fact that the appellant Co-operative Society has been under an Administrator or the Administrative Committee, as the case may be, for a very long time and it will be against public WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 18: _-_ interest for the indefinite continuance of an Administrative Committee. Further, it is also ordered that the competent authority of the State Government in the Co-operation Department will immediately issue formal notification, under Section 101 of the KCS Act, so as to relax the rigor of the provisions of the KCS Act, more particularly, Section 33(1)(b) thereof, in its application to the appellant Co-operative Society, so that the Administrative Committee could continue in office for the limited purpose of conduct and completion of election process, as above. 14. Further, whether the competent authority of the State Government may or may not issue any such notification under Section 101, it is hereby ordered and authorized that the Administrative Committee will remain in office for the limited purpose of conduct and completion of the election process, as above, subject to the condition that they shall not take any policy decision, and if any emergency warrants taking of any policy decision, it shall be done only with the concurrence of the respondent Joint Registrar of Co-operative Societies (General) concerned. The competence of the Administrative Committee to pass resolution for election purpose, as above, shall not be called into question in any proceedings, on the ground that the State Government may not have issued the afore – sec. 101 exemption notification, extending the WA No.543/2022, _WP(C) No.35617/2016 & WP(C) No.34941/2016_ _-:_ 19: _-_ ## terms of the Administrative Committee. 15. The Secretary to the Advocate General will forward a copy of this judgment to the respondent State Government, the respondent Joint Registrar of Co-operative Societies (General) as well as the Assistant Registrar of Co-operative Societies concerned. Standing Counsel for the respondent State Co-operative Election Commission will also ensure that a copy of this judgment is immediately forwarded to the said party. The impugned orders and directions issued by the learned Single Judge, as in the judgment rendered on 04.04.2022 in WP(C) No.4149/2022, will stand modified and substituted as above. With these observations and directions, the above WP(C)s and WA will stand finally disposed of. SD/- ## **ALEXANDER THOMAS, JUDGE** SD/- ## **SHOBA ANNAMMA EAPEN, JUDGE** Nsd **APPENDIX OF WP(C) 34941/2016** ## PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE ELECTION NOTIFICATION| |---|---| ||NO.E(1)2692/2015/S.C.E.C.DATED 29.06.2015| |EXHIBIT P2|A TRUE COPY OF THE LIST OF CANDIDATES,WHO HAD| ||SUBMITTED THEIR NOMINATIONS,PUBLISHED BY THE| ||RETURNING OFFICER ON 20.07.2015| |EXHIBIT P3|A TRUE COPY OF THE NOMINATIONS ACCEPTED BY THE| ||RETURNING OFFICER PUBLISHED ON 21.07.2015| |EXHIBIT P4|A TRUE COPY OF THE FINAL LIST OF CONTESTING| ||CANDIDATES PUBLISHED BY THE RETURNING OFFICER| ||DATED 22.07.2015| |EXHIBIT P5|A TRUE COPY OF THE INTERIM ORDER DATED| ||21.07.2015 IN WP(C)NO.21935 OF 2015| |EXHIBIT P6|A TRUE COPY OF THE JUDGMENT DATED 11.08.2016 IN| ||WP(C)NO.21935 OF 2015| |EXHIBIT P7|A TRUE COPY OF THE ELECTION NOTIFICATION| ||NO.E(1)2682/2015/S.C.E.C.DATED 25.10.2016.| **APPENDIX OF WP(C) 35617/2016** PETITIONER EXHIBITS |EXHIBIT P1|A COPY OF THE ELECTION NOTIFICATION DATED| |---|---| ||29.6.2015 OF THE ELECTION COMMISSION.| |EXHIBIT P2|A COPY OF THE FINAL VOTERS LIST PUBLISHED BY| ||THE ELECTORAL OFFICER.| |EXHIBIT P3|A COPY OF THE FINAL LIST OF CANDIDATES| ||PUBLISHED BY THE RETURNING OFFICER.| |EXHIBIT P4|A COPY OF THE INTERIM ORDER DATED 21.7.2015 IN| ||WPC NO.21935/2015.| |EXHIBIT P5|A COPY OF THE JUDGMENT DATED 11.8.2016 IN WPC| ||NO.21935/2015.| |EXHIBIT P6|A COPY OF THE ORDER DATED 17.10.2016 IN SLP| ||NO.27046/2016.| |EXHIBIT P7|A COPY OF THE SRO NO.643/2016 DATED 15.10.2016.| |EXHIBIT P8|A COPY OF THE ELECTION NOTIFICATION DATED| ||25.10.2016 PUBLISHED BY THE 5TH RESPONDENT.| |EXHIBIT P9|A COPY OF THE BYE-LAW AMENDMENT APPROVED BY THE| ||JOINT REGISTRAR.| **APPENDIX OF WA 543/2022** PETITIONER ANNEXURES |Annexure A1|A TRUE COPY OF THE GOVT, OF KERALA GAZETTE| |---|---| ||NOTIFICATION DATED 25.01.2022-G.0.(P)NO.12/2022| ||/CO-OP [S.R.O.NO.89/2022]TOWARDS THE CO-| ||OPERATIVE SOCIETIES ELECTION.| |Annexure A2|A TRUE COPY OF THE ORDER IN MA.NO 665/2021-| ||INSMW((C)NO.3/2020-OF THE HON'BLE SUPREME| ||COURT- IN RE: COGNIZANCE FOR EXTENSION OF| ||LIMITATION.| |Annexure A3|A TRUE COPY OF THE REQUEST MADE BY THE| ||APPELLANTS BEFORE THE SECRETARY TO GOVT, DATED| ||12.04.2022.| |Annexure A4|A TRUE COPY OF THE REQUEST MADE BY THE| ||APPELLANTS BEFORE THE JOINT REGISTRAR OF CO-| ||OPERATIVE SOCIETIES (GENERAL)HEREIN THE 3RD| ||RESPONDENT IN THIS WA.| |Annexure A5|A TRUE COPY OF THE REQUEST MADE BY THE| ||APPELLANTS BEFORE THE ASSISTANT REGISTRAR OF| ||THE COOPERATIVE SOCIETIES (GENERAL) HERE IN THE| ||5TH RESPONDENT IN THIS WRIT APPEAL.| |Annexure A6|A TRUE COPY OF THE ORDER IN C.R.P(1)| ||NO.7400/2015 DATED 12.08.2016 ISSUED BY THE| ||JOINT REGISTRAR (GENERAL) OF THE CO-OPERATIVE| ||SOCIETY.| |Annexure A7|A TRUE COPY OF THE ORDER IN C.R.P(1)| ||NO.7400/2015 DATED 20.01.2020 ISSUED BY THE| ||JOINT REGISTRAR (GENERAL) OF THE CO-OPERATIVE| ||SOCIETY.| |Annexure A8|A TRUE COPY OF THE GAZETTE NOTIFICATION DATED| ||05.04.2022- BY THE ORDER OF HON'BLE GOVERNOR IN| ||G.O(P)NO.47/2022/CO-OP [S.R.O.NO.383/2022]-WAS| ||MADE BY THE JOINT SECRETARY TO GOVERNMENT.| |Annexure A9|A TRUE COPY OF THE ORDER IN C.R.P(1)| ||NO.9052/2016 DATED 22.01.2021 ISSUED BY THE| ||JOINT REGISTRAR (GENERAL) OF THE CO-OPERATIVE| ||SOCIETY.| |Annexure A10|A TRUE COPY OF THE S.65 ENQUIRY REPORT| ||SUBMITTED BY THE ENQUIRY OFFICER, ONE MR.C.S.| ||RAGHUL, AT THE FORT UNIT INSPECTOR OF THE 5TH| ||RESPONDENT OFFICE.| |Annexure A11|A TRUE COPY OF THE ORDER IN C.R.P(1)| |---|---| ||NO.9052/2016 DATED 22.12.2021 ISSUED BY THE| ||JOINT REGISTRAR (GENERAL) OF THE CO-OPERATIVE| ||SOCIETY.| |Annexure A12|A TRUE COPY OF THE S.68(1)SURCHARGE ENQUIRY| ||REPORT SUBMITTED BY THE ENQUIRY OFFICER, ONE| ||MR.DEVASANAN NAIR.M.S. AT THE VATTIYOOR KAVU| ||UNIT INSPECTOR OF THE 5TH RESPONDENT OFFICE.| |Annexure A13|A TRUE COPY OF THE S.68(2)NOTICE ISSUED BY THE| ||JOINT REGISTRAR (GENERAL) OF THE CO-OPERATIVE| ||SOCIETY TO THE EARLIER 7 MANAGING COMMITTEE| ||MEMBERS OF THE APPELLANT SOCIETY IE, AS PER THE| ||S.68(1) REPORT.| |Annexure A14|A TRUE COPY OF THE ON LINE REPLIES WERE| ||SUBMITTED BY THE EARLIER 7MANAGING COMMITTEE| ||MEMBERS OF THE APPELLANT SOCIETY BEFORE THE| ||JOINT REGISTRAR(GENERAL) DATED 20.04.2022.| |Annexure A15|A TRUE COPY OF THE INTERIM ORDER IN WP (C)| ||NO.14439 /2022, OBTAINED BY THE EARLIER7| ||MANAGING COMMITTEE MEMBERS FROM THIS HON'BLE| ||COURT DATED 22.04.2022.| |Annexure A16|A TRUE COPY OF THE CIRCULAR NO.07/2011[NO. E| ||(2) 271/2011/ S.C.E.C]-DATED 21.10.2011 ISSUED| ||BY THE KERALA STATE CO-OPERATIVE ELECTION| ||COMMISSION. (KSCEC).| |Annexure A17|A TRUE COPY OF THE CIRCULAR NO.09/2012[NO. E| ||(2)399/2011/S.C.E.C] DATED 10.07.2012 ISSUED BY| ||THE KSCEC.| |Annexure A18|A TRUE COPY OF THE CIRCULAR NO.01/2013[NO. E| ||(2)428/2013/S.C.E.C] DATED 10.03.2013 ISSUED BY| ||THE KSCEC.| |Annexure A19|A TRUE COPY OF THE CIRCULAR NO.01/2015DATED| ||09.02.2015 ISSUED BY THE KS C CEC.| |Annexure A20|A TRUE COPY OF THE CIRCULAR NO.02/2015[NO. E| ||(1) 1417/2015/ S.C.E.C] DATED 09.04.2015 ISSUED| ||BY THE KSC CEC.|