P.G. Jayakumar v. State Co-operative Election Commission, Electoral Officer for Matsyafed, Returning Officer for Matsyafed, and Kerala State Co-operative Federation for Fisheries Development Limited (MATSYAFED) and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 10TH DAY OF DECEMBER 2014/19TH AGRAHAYANA, 1936 ## WP(C).No.31371 of 2014 (V) ------------------------------------------------- PETITIONER(S):- -------------------------- P.G. JAYAKUMAR, AGED 49 YEARS, PRESIDENT, NJARAKKAL- NAYARAMBALAM MALSYA THOZHILALI VIKASANA KSHEMA SAHAKARANA SANGOM NO. F (E) 14/87, ARATTUVAZHI, NJARAKKAL.P.O., ERNAKULAM-682505. BY ADV. SRI.P.C.SASIDHARAN. RESPONDENT(S):- ---------------------------- 1. STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWERS, VIKAS BHAVAN POST, THIRUVANANTHAPURAM-695033. 2. ELECTRORAL OFFICER APPOINTED FOR CONDUCT OF ELECTION TO THE KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT LIMITED (MATSYAFED), OFFICE JOINT DIRECTOR OF FISHERIES (SOUTH ZONE), KAMALESWARAM, MANACAUD.P.O., THIRUVANANTHAPURAM-695009. 3. RETURNING OFFICER APPOINTED FOR CONDUCT OF ELECTION TO THE KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT LIMITED (MATYAFED), OFFICE ASSISTANT DIRECTOR OF FISHERIES (SOUTH ZONE), KAMALESWARAM, MANACAUD.P.O., THIRUVANANTHAPURAM-695009. 4. KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT LIMITED. (MATSYAFED), MATSYA BHAVAN, KAMALASWARAM, MANACAUD, THIRUVANANTHAPURAM-695009 REPRESENTED BY ITS MANAGING DIRECTOR. R1 TO R3 BY SPECIAL GOVERNMENT PLEADER SRI.D.SOMASUNDARAM. R4 BY STANDING COUNSEL SRI.GEORGE POONTHOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2014, ALONG WITH W.P.(C).NO.31449 OF 2014-E, THE COURT ON 10-12-2014 DELIVERED THE FOLLOWING:- WP(C).No.31371 of 2014 (V) --------------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- - EXT.P1. TRUE COPY OF THE BYE-LAWS OF THE 4TH RESPONDENT MATSYAFED. EXT.P2. TRUE COPY OF THE NOTIFIATION ISSUED TBY THE 1ST RESPONDENT. EXT.P3. TRUE COPY OF THE NOTICE INTIMATING THE CONVENING OF THE GENERAL BODY MEETING OF THE 4TH RESPONDENT MAYSYAFED. - EXT.P4. TRUE COPY OF THE DECISION TAKEN BY THE MANAGING COMMITTEE IN THIS REGARD DATED 17-11-14. - EXT.P5. TRUE COPY OF THE JUDGMENT IN WPC NO.26188 OF 2013. RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R1(a) TRUE COPY OF THE LETTER DATED 27.10.2014. vku/- ( true copy ) K.Vinod Chandran, J. ----------------------------------------------------------------W.P.(C).Nos.31371 of 2014-V & 31449 of 2014-E ----------------------------------------------------------------Dated this the 10th day of December, 2014 ## **JUDGMENT** Both the above writ petitions challenge the election notified to the Kerala State Co-operative Federation for Fisheries Development Limited [MATSYAFED]. The challenge raised is on two different grounds. But, since the matters have been heard together and the challenge is levelled against the very same election notification, it is deemed fit that the matters also be disposed of by a common judgment. 2. W.P.(C).No.31371 of 2014 challenge the election notification dated 31.10.2014 on the ground that the same is in violation of the bye-laws. The notification is produced as Exhibit P2 and it shows that the election is to 14 constituencies; of which 3 [three] have been set apart for women, 1 [one] for Scheduled Castes/Scheduled Tribes and the balance 10 [ten] being general seats. The objection raised is with respect to the election being confined to 14 constituencies, while the bye-laws of the MATSYAFED provide for election of 15 [fifteen] members to the Board of Directors. WP(C).Nos.31371 of 2014 & - 2 - 31449 of 2014 3. Exhibit P1 is the bye-laws, clause 14 of which, provides for the constitution of a Board of Directors having 15 members elected from the delegates of 'A' Class members and 7 [seven] Ex-Officio Directors. The maximum number of members in the Board of Directors is also restricted to 25 [twenty-five], by the said bye-laws. The bye-laws are in consonance with the Kerala Co-operative Societies Act, 1969 [for brevity “the Act”] as it existed prior to the amendment of sub-section (1A) of Section 28. Sub-section (1A) of Section 28 as it stands now, provides that in the case of Primary Co-operative Societies, the maximum number of members of the Committee shall not be more than 15 and in the case of all other types of Co-operative Societies, 21. The petitioner contends that a reduction, to comply with the mandate of the Section, ought to have been brought in only by an amendment to the bye-laws. In fact, the MATSYAFED ought to have complied with the mandate of the statute, by removing one nominee from the Ex-Officio Directors stipulated under sub-clause (b) of Clause 14(i) of the bye-laws, is the argument. The learned counsel for the petitioner specifically points to the counter affidavit of the respondents, which refute such contention on the ground that a bye-law amendment is required to delete an Ex-Officio Director. The same principle would WP(C).Nos.31371 of 2014 & - 3 - 31449 of 2014 apply in the reduction of elected members from 15 to 14, is the contention of the petitioner. The election would have to be interdicted especially considering the fact that reduction has been brought in to the vacancies which are filled up by election, and the conduct of the election as constituted now, would result in compromising the democratic process, is the contention. 4. The learned Special Government Pleader (Co-operation), however, would support the action of the Election Commission, insofar as the bye-laws are subservient to the statute. Election to the society furthers the democratic process and it is only to ensure the entrustment of the Managing Committee to a democratically elected committee that the present election is proposed. The substantial financial interest of the State in the MATSYAFED would not commend reduction of Ex-Officio Directors, is the argument. A pragmatic approach has to be taken and when there is a conflict with the statute and bye-laws, necessarily the statute would prevail, contends the learned Special Government Pleader. The learned counsel appearing for the MATSYAFED would support the contentions of the learned Special Government Pleader and would, alternatively, assail the _locus standi_ of the petitioner. The learned counsel would specifically point out that the member societies of the WP(C).Nos.31371 of 2014 & - 4 - 31449 of 2014 MATSYAFED are those affiliated as per the statute and only such society gets a right to exercise the franchise. The petitioner is the President of a Society, who cannot claim any such right. In any event, the reduction of one member does not at all prejudice the petitioner, if at all he is nominated by the Society, since the elections are not on ward basis and none who have been nominated by the affiliated societies would be declined participation in the election by reason only of one vacancy from among the elected members having been reduced. 5. The learned counsel appearing for the petitioner would, however, specifically refer to the averments in the writ petition to contend that there can be no dispute raised with respect to the _locus standi_ , since there is a specific contention that the Society, of which the petitioner is the President, has decided that the petitioner to be nominated to the election and it is also averred that the petitioner has filed the above writ petition on behalf of the Society. The question of _locus standi_ would be left open in the nature of the orders to be passed herein. 6. W.P.(C).No.31449 of 2014 assails the election procedure or rather the procedure followed in publishing the final voters list. The petitioners, two Societies and their respective Presidents, are said to WP(C).Nos.31371 of 2014 & - 5 - 31449 of 2014 have challenged the published final voters list on the ground that many ineligible members were included therein. The 2nd petitioner is also said to have filed Exhibit P3 objection, before the Electoral Officer, which, according to the petitioner, has been rejected on a cursory examination of the objections. The learned Senior Counsel appearing for the petitioners would take this Court through Section 21 of the Act, prescribing the manner of exercising franchise; and Rule 44A of the Rules, speaking of delegation, to contend that inclusion of large number of societies which are facing liquidation itself would vitiate the final voters list published. 7. The objections are pointed out to be with respect to the societies which were not included in the last election and those affiliated societies who are facing liquidation. It is also contended that Exhibit P3 had produced a list of societies so disqualified from being included. Reliance is also placed on Exhibit P6, issued on an query under the Right to Information Act, 2005 from the office of the Fisheries Joint Director, as to the list of societies which are liquidated. The learned Senior Counsel would contend that the Electoral Officer is the Joint Director of Fisheries, from whose office Exhibit P6 has been issued and, hence, cannot feign ignorance of the societies which are under WP(C).Nos.31371 of 2014 & - 6 - 31449 of 2014 liquidation. 8. The learned Senior Counsel would also refer to Section 71(3) of the Act, to contend that unless a proposal for revitalisation of a society is received by the Registrar within a period of one year from the date of winding up of a Society, the Registrar cannot permit any rehabilitation of a society. The learned Senior Counsel would specifically lay emphasis on the pre-amended sub-section (3) of Section 71, which provided that the Registrar may, at any time, cancel an order for winding up; if in his opinion the society should continue to exist. 9. The learned Special Government Pleader, however, would contend that the winding up and dissolution of Co-operative Societies, dealt with under Chapter X, would result in loss of affiliation; only with an order, in writing, made by the Registrar cancelling the registration of the society under Section 74. Till then the affiliation has to be continued of the societies included in the voters list, as has been declared by a learned Single Judge in O.P.No.7060 of 1989 by judgment dated 11.04.1990. The learned Senior Counsel, however, would pointedly refer to the amendment of sub-section (3) of Section 71 to refute the reliance placed on the aforesaid judgment. The pre-amended sub-section (3) of Section 71 definitely grants wide discretion to the WP(C).Nos.31371 of 2014 & - 7 - 31449 of 2014 Registrar who could cancel an order of winding up merely on the expression of an opinion that the Society should continue to exist. The amended provision, however, puts a reign on such discretion, insofar as the Registrar being conferred with the power to cancel an order of winding up only, if there is a proposal for revitalisation of the society and that too when the same is received within a period of one year from the date of an order under sub-section (2). 10. Dealing with the contentions in W.P.(C).No.31371 of 2014, it has to be noticed that Section 28 provides for and restricts the maximum number of members of a society to 21, in the case of societies similar to the respondent-Society. The bye-laws of the society, in consonance with the earlier provision of maximum 25, provided for 15 elected members and 7 Ex-Officio members. The fact that the Ex-Officio Directors were stipulated in the bye-laws coupled with the fact that the Government has substantial financial interest in the MATSYAFED, would not commend a reduction of such Ex-Officio members to comply with the mandate of sub-section (1A) of Section 28. In any event, that is not a matter of which this Court would speak on, under Article 226 of the Constitution. That definitely would be an issue to be placed before the General Body, as to whether any reduction of any Ex-Officio WP(C).Nos.31371 of 2014 & - 8 - 31449 of 2014 members would have to be made or not. 11. Definitely the petitioner's contention that a reduction of elected members would also have to be placed before the General Body; cannot be altogether ignored. However, when looking at the substantial financial interest of the Government in the society and the need for continuance of the Ex-Officio Directors, the reduction of the elected members by 1 [one] could only be the practical view to be adopted to go ahead with the election; so as to make the bye-laws, concede to the mandate of the statute. The reservation with respect to three seats for women and one seat for SC/ST is again a mandate under Section 28A, which was also brought in by amendment; and bye-laws had only provided for one each, reserved seats for woman member and SC/ST. In such circumstance, there can be no fault found on the Society for having brought down the elected vacancies to 14 to comply with the statute. 12. The bye-laws though would regulate the affairs of the Society, including the constitution of a Committee and election thereto, would have to definitely concede to the statutory prescription. This Court is not persuaded to find that any prejudice is caused in the election, by reduction of one seat to comply with the statutory mandate WP(C).Nos.31371 of 2014 & - 9 - 31449 of 2014 and the conduct of election would only further the democratic principles which underlie the constitution of societies and their management. 13. A similar situation had arisen when, for the first time reservation of seats for women and scheduled castes was provided, by Section 28A, introduced in 1985. The challenge made to such reservation was negatived in _**Gopinathan Nair v. Senior Inspector of Co-op. Societies**_ **[1986 KLT 1269].** An ancillary challenge was also made therein to addition of two seats, to comply with Section 28A, raising the strength of the Committee from 11 to 13; without an amendment to the bye-law. A learned Single Judge held so: “The provisions of the bye-law are swept by the feet, when the statutory provision operates with its full force and effect. No bye-law can overpower the provisions of a statute. As noted earlier, the State mandates the presence of a woman member and a member of the Scheduled Castes/Scheduled Tribes, in the Committee of the Co-operative Society. It is open to the Society to earmark two of the existing seats in the Committee for reservation as contemplated under S.28A, one for the women and one for the Scheduled Castes/Scheduled Tribes. It is equally open to the Society to leave the existing pattern in tact, stipulating for the members to be elected in accordance with the existing procedure, and to provide additionally for the two seats, one for women and one for the Scheduled Castes/Scheduled Tribes. As to which WP(C).Nos.31371 of 2014 & - 10 - 31449 of 2014 of these courses should be adopted is a matter for the Society to decide. No formal change of the bye-law is visualised for achieving the above object. The Section does not say so. When the Section does not say so, it is not necessary to read into the Section, any cumbersome or additional provision, which will have only the effect of defeating and delaying the implementation of the statutory provision of Section 28A”. The said view is further fortified by the Hon'ble Supreme Court, declaring that the bye-laws of a Co-operative Society framed in pursuance of the provisions of the statute cannot be held to be law or to have the force of law in _**Co-operative Central Bank v. Industrial Tribunal, Hyderabad**_ **[AIR 1970 SC 245].** 14. W.P.(C).No.31449 of 2014 is with respect to the finalisation of the voters list, which final voters list, according to the petitioners, contain a number of members who are not entitled to exercise their franchise. Exhibits P3 and P5 are the objections said to have been filed before the Electoral Officer, which were considered and the final voters list published. It is trite that the Electoral Officer is not making a roving enquiry and has to consider the materials placed before the electoral Officer to come to a prima facie conclusion as to whether a particular member included in the draft voters list is entitled to WP(C).Nos.31371 of 2014 & - 11 - 31449 of 2014 be retained in the final voters list. Sufficient support to this proposition can be garnered from the decision in _**Vijayakumar v. Joint Registrar**_ **[1996 (1) KLT 285].** 15. Exhibit P3 objection has put forward three lists as Annexures-I, II and III. Annexure-I is said to be list of societies which are not included in the last election. That alone would not warrant their exclusion in the present election, since it is not clear as to what was the reason for these societies being not included in the last elections and as to whether they had, subsequent to the last elections, acquired the eligibility to be included herein. In any event, merely for reason of exclusion in one election, it cannot be said that the member society shall be excluded in all subsequent elections. Annexure-II gives a list of Societies, which, according to the petitioners, were liquidated by an order, the date of which is also shown therein. However, the mere fact of a list having been produced with the “date of order” shown therein, does not by itself require exclusion, since such contention has to be substantiated before the Electoral Officer. Admittedly no orders have been produced before the Electoral Officer. Though a contention has been raised before this Court that Exhibit P6 was one issued from the office of the Electoral Officer itself, this Court cannot deviate from the WP(C).Nos.31371 of 2014 & - 12 - 31449 of 2014 proposition laid down in _**Vijayakumar**_ ( _supra_ ), since the Electoral Officer has to act on the materials placed before him by the objector. The Electoral Officer, who is the incumbent in the post of Joint Director of Fisheries, would not be expected to verify his office records to come to a conclusion that one society or other is disqualified from being included in the voters list. 16. Annexure-III again is a list of 233 members, which included those societies included in Annexures I and II, and the balance of which societies are said to be having no Managing Committees. It is not clear as to what are the objections with repsect to the societies included in Annexure-III which are not included in Annexure I and II lists. Exhibit P5 also raises vague objections against certain societies included in the list, without any substantiation thereof. Exhibits P3 and P5 do not specificaly urge an objection with materials, to substantiate the same, before the Electoral Officer. As was noticed earlier, the Electoral Officer is not expected to make a roving enquiry of the objections raised. 17. Further, it is to be emphasised that the inclusion of certain societies in the final voters list is mainly raised for reason of they being defunct and under orders of liquidation. Section 21 and Rule 44A WP(C).Nos.31371 of 2014 & - 13 - 31449 of 2014 provides sufficient safeguards in such societies not participating in the election process, though their names are included in the voters list. The manner of exercising vote by every member of a society, as prescribed in sub-section (2) of Section 21, prescribes _inter alia_ that a society which is a member of another society, may, subject to the rules made under the Act, appoint one of its members to vote on its behalf in the affairs of that other society. Rule 44A specifically provides for the delegate of a society to another society, in which the former society is a member, to be a member of the committee of the member society. The proviso to Rule 44A also confers power on the Administrator/ Administrators/ Administrative Committee to nominate any member of a society to be its delegate in the other society. Hence, only a society which is having a validly elected Managing Committee or the affairs of which are managed by an Administrator/ Administrators/ Administrative Committee, as appointed by the Joint Registrar; would be entitled to vote in the election to the apex Society. The apprehension that the inclusion of defunct societies and societies under liquidation would vitiate the election is misplaced. Any election in which such active participation is detected, could be challenged in an Election Petition properly instituted, after the results are declared. WP(C).Nos.31371 of 2014 & - 14 - 31449 of 2014 18. Having found so, this Court is of the opinion that the controversy with respect to the amendment of sub-section (3) of Section 71 need not be looked into at this stage. Suffice it to notice that the amendments as such does not deviate from the fact that, even now, an order in writing under Section 74 is necessary for a cancellation of the registration of a society. Any franchise exercised by a member who was not entitled to vote or who is disqualified from being participated in the elections could be ideally challenged in an Election Petition. That has not come to pass and would be possible of verification only after the polling is carried out. This Court would not extend its powers under Article 226 of the Constitution to look into such aspects, which necessarily would have to be relegated to fact adjudication. This Court does not find any infirmity in the election scheduled and leaving open the contentions with respect to inclusion of the alleged ineligible members in the voters list, the writ petitions would stand dismissed. Parties are left to suffer their respective costs. Sd/- K.Vinod Chandran Judge vku/- ( true copy )