RP.No.585 of 2017 in W.P.(C) No.16693 of 2017 & W.P.(C) Nos.19978 & 21600 of 2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** ## **RP.No. 585 of 2017 ()** **-------------------WP(C) 16693/2017 of THIS HON'BLE COURT --------REVIEW PETITIONER/ADDL.4TH RESPONDENT : -------------------------------------** ## **VIDWAN K .RAMAKRISHNAN VRINDAVANAM, PATTANAKKAD P.O, CHERTHALA.** **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 : -------------------------------------------** **1. PATTANAKKAD SERVICE CO-OPERATIVE BANK LTD REPRESENTED BY ITS SECRETARY IN CHARGE, PATTANAKKAD P.O, CHERTHALA, ALAPPUZHA DISTRICT, 688 531.** **2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES [GENERAL], CHERTHALA, ALAPPUZHA DISTRICT 688 552.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES [GENERAL] ALAPPUZHA 688 001.** **4. THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM 695 001.** **R1 BY ADVS. SRI.V.G.ARUN** **SRI.T.R.HARIKUMAR** **R2 TO R4 BY GOVERNMENT PLEADER** **SRI.P.N.SANTHOSH** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06/07/2017, ALONG WITH WPC. 19978/2017, WPC. 21600/2017, THE COURT ON 12-07-2017 PASSED THE FOLLOWING:** **bp** **RP.No. 585 of 2017 ()** **---------------------** ## **APPENDIX** **PETITIONER'S ANNEXURES : ----------------------** **ANNEXURE A1: CERTIFIED COPY OF THE JUDGMENT DT 7/6/2017. ANNEXURE A2: COPY OF THE ELECTION NOTIFICATION DT 23/6/2017 ALONG WITH NOTICE ISSUED BY R1.** **RESPONDENT'S ANNEXURES :** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **R.P.No.585 of 2017 in W.P.(C) No.16693 of 2017 & W.P.(C) Nos.19978 & 21600 of 2017 ----------------------------------------------Dated this the 12[th] day of July, 2017** ## **ORDER/JUDGMENT** The aforesaid review petition and the writ petitions are materially and substantially connected in relation to election to the Pattanakkad Service Co-operative Bank Ltd. No.1144, and therefore, I heard them together and propose to pass a common order/judgment. 2. The additional 4th respondent in W.P.(C) No.16693 of 2017 is the review petitioner. The writ petition was disposed of by this Court on 07.06.2017, directing the State Co-operative Election Commission, i.e. the 3rd respondent in the writ petition to act upon Exts.P1 and P2, i.e. the resolution dated 05.04.2017 adopted by the Bank and a request letter dated 11.04.2017, and conduct the election at the earliest possible, and at any rate, within one month from the date of receipt of a copy of the judgment. 3. According to the review petitioner, the proposed date of election in terms of Exts.P1 and P2 was 18.06.2017. **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 2 In compliance with the judgment, the Election Commission issued Annexure-A2 notification dated 23.06.2017 to hold the election on 22.07.2017. However, it is submitted that the election notification is issued solely in compliance of the judgment of this Court, and thereupon, there is an error apparent on the face of the record, since the statutory requirement contained under Rule 35A of the Kerala Cooperative Societies Rules, 1969 [for short, 'the KCS Rules'] is not followed. 4. W.P.(C) No.21600 of 2017 is filed by a member of the aforesaid Bank, challenging Annexure-A2 election notification on the very same grounds raised in the review petition, i.e. the notification is in violation of the statutory requirements contained under Rule 35A. W.P.(C) No.19978 of 2017 is filed by some members of the very same society, seeking a direction to conduct election in accordance with the resolution passed by the Bank, and also to appoint an Administrative Committee with any three members of the present Managing committee, since the term of the committee is due to expire on 14.07.2017. In my considered opinion, if the issue raised in the review petition is sorted out, the other **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 3 two writ petitions can be disposed of, guided by the findings rendered therein. 5. As I have pointed out earlier, the issue centres around Rule 35A(4) of the KCS Rules, which read thus: _**“35A. Procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission** ._ _(1) x x x x x x x x x (2) x x x x x x x x x (3) x x x x x x x x x_ _**(4)** The State Co-operative Election Commission shall appoint an Electoral Officer from among the officers of the concerned Administrative Department, 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 stood on a date 60 days prior to the date fixed for the poll. The list shall contain the admission number, name of the member, name of father or husband and the address of such member. Such list shall also contain the name and other particulars of the delegate in cases where the member is a society or corporation or a statutory or non-statutory Board, Committee or other body of persons which is a member of another society or Government. It shall be the duty of the Chief Executive of the concerned society to prepare, up date the list as per the Rules and submit voters list duly approved by the Committee, to the Electoral Officer within thirty five days prior to the date fixed for election and render all assistance required by the Electoral Officer. It is the duty of the Electoral Officer to publish the preliminary voters list in Form No.34 in the Notice Board of the Head Office and branches, if any, of the society and call for objections if any, on the voters list within seven days of publication and publish final voters list in Form No.35 within twenty days prior to the date fixed for the poll. The final voters list so prepared should be published in the Head Office and branches of the concerned society. A copy of such list shall be supplied_ **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 4 _by the society to any member on payment of such fees as may be prescribed by the committee of the Society._ _Explanation.--Only the active members shall be included in the voters list. The members who have utilized the minimum service provided by the society during the two consecutive years shall be considered as active members. The preliminary voters list and final voters list shall contain the name and address of the society where the member is a society or corporation or a statutory or non-statutory board, committee or other body of persons which is a member of another society or Government.”_ 6. The pinpointed contention advanced by learned counsel for the review petitioner is that, it shall be the duty of the chief executive of the concerned society to prepare, update the list as per the Rules and submit the voters list duly approved by the committee to the Electoral Officer “ **within thirty five days prior to the date fixed for election and render all assistance required by the Electoral Officer** ”. The crux of the contention of the learned counsel is that, there should be a minimum gap of thirty five days from the date of submission of the voters list to the Electoral Officer to the date of election. In my considered opinion, the thirty five days prescribed therein is an outer limit, which thus means, there need to be a maximum gap of thirty five days. In my considered opinion, the thirty five days fixed thereunder **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 5 cannot be required to be a mandatory requirement, because the maximum time required for processing the election is stipulated in the very same provision itself to the effect that “ **it is the duty of the Electoral Officer to publish the preliminary voters list in Form No.34 in the Notice Board of the Head Office and branches if any, of the society and call for objections if any, on the voters list within seven days of publication and publish final voters list in Form No.35 within twenty days prior to the date fixed for the poll”.** 7. Therefore, it can be seen that the maximum time required for processing the entire steps in the voters list is twenty-seven days. The thirty five days time prescribed is only to ensure the compliance of twenty-seven days prescribed for processing the voters list. Moreover, the preparation of the voters list is the duty of the Managing Committee of the society/bank concerned, which is evident from Clause (4) of Rule 35A. Further, the paramount consideration, so far as the voters list is concerned, is with respect to the objection against the same that is to be received from the members of the society, consequent to inclusion of unqualified persons and **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 6 exclusion of qualified persons. In that process, seven days period is prescribed, and thereafter sufficient gap is provided to conduct the election by providing twenty days. 8. In the case in question, the election notification is dated 23.06.2017, which is a continuation of Ext.P1 resolution adopted by the Bank in the writ petition concerned. The date fixed for publication of the draft voters list is 24.06.2017 at 11 a.m. and the seven days period is prescribed within the said date for receiving objections that is up to 30.06.2017 till 5 p.m. For consideration of the objections raised, time was fixed on 01.07.2017 from 11 a.m. to 1 p.m., in the office of the Bank, and the final voters list was notified to be published on 01.07.2017 at 4 p.m. Other dates are fixed for other requirements of the election, which are not relevant to decide the issue. However, the statutory requirement provided to conduct the election is publication of final voters list within twenty days prior to the date fixed for the poll. Therefore, in my considered opinion, even if assuming that “thirty five days” is prescribed for conduct of the poll from the date of submission of the voters list by the managing committee, in my considered opinion, the same is not a mandatory **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 7 requirement at all. The same can only be termed as directory. On the other hand, the peremptory statutory requirement is only 27 days prior to the date fixed for the poll in two spells specified above. 9. A learned Single Judge of this Court had occasion to consider the said issue in _**'P.K. Karunan Nair and others v. Joint Registrar and others'**_ [1992 (2) KLJ 19], where the question raised was, under the then existing Rule 35(1) with respect to the period of sixty days provided for drawing up the resolution by the society, and held that the period of sixty days provided is not mandatory and any resolution taken within that period is liable to be acted upon. It is further held therein that the purpose and intendment of the Rule is to ensure continuity in the office of an elected body. 10. So also, a Division Bench of this Court had occasion to consider the very same question in ' _**George Abraham v. Assistant Registrar of Co-operative Societies**_ ' [1996 (1) KLT 669] and held that a resolution passed within 60 days of the expiration of the term of the committee for holding the election cannot be considered as invalid, and further that, 60 days period cannot be treated as infallible. It was also held **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 8 that the period of 60 days can only be treated as directive and cannot be taken as a mandatory provision. 11. Further, my attention was drawn by the learned counsel for the respondents to a Division Bench judgment of this Court in ' _**Madhavan Namboodiri v. Kammaran**_ ' [1992 (2) KLT 567], wherein it is held that when election is not conducted on the date originally fixed, the Managing Committee has authority and jurisdiction to fix a new date for the election, and it is not necessary to repeat the whole process as contemplated in Rule 35. That apart, learned counsel for the respondents has invited my attention to Article 243ZK of the Constitution of India, which read thus: _“ --_ _**243ZK. Election of members of board.** (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board._ _(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:_ _Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election.”_ **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 9 12. Therefore, going by the tenor and terms of the provisions of the Constitution, it is clear that what is paramount and important is the conduct of the election before the expiry of the term of the Board so as to ensure that the newly elected members of the Board assume office immediately on the expiry of the term of office of the members of the outgoing Board. 13. The discussion of facts made above makes it clear that the term of the present committee expires on 14.07.2017. Therefore, it is imperative on the part of the statutory authority to conduct the election at the earliest possible, so as to ensure constitution of a Board immediately after the expiry of the existing Board, as is mandated under the provisions of the Constitution of India, and the Kerala Co-operative Societies Rules, 1969. 14. That apart, if the Legislature intended a clear thirty five days for submission of voters list before the date fixed for the poll, a definite phraseology to intent so should have been applied by stating that “thirty five days before the conduct of the election”. The term 'within' is defined by the Chambers Concise Dictionary to mean, inside; in the limits of; not going **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 10 beyond; entered from etc. Therefore, I am of the considered opinion that such a flexible term is employed by the Legislature with the intention of ensuring that the mandatory requirement of twenty seven days is achieved for the purpose of processing the draft voters list and finalizing the voters list. Going by the dates fixed under Annexure-A2 election notification, it is categoric and clear that there is a clear gap of 29 days for the conduct of the election from the publication of the draft voters list, which would satisfy the mandatory requirement. In that view of the matter, I am of the considered opinion that the review sought on account of the error apparent on the face of the record in the review petition cannot be sustained. Therefore, the review petition is dismissed. 15. W.P.(C) No.21600 of 2017 is challenging the very same notification by raising the contentions raised in the Review Petition. Therefore, the findings rendered by this Court in the review petition clearly guide the fate of the said writ petition and it will stand dismissed. That apart, the election is already declared, voters list is published and it is finalized also. Therefore, the election proceedings are on and no manner of **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 11 interference is welcoming, as held by the apex court in _**'Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others'**_ [AIR 2001 SC 3982], which was followed in _**'Shaji K. Joseph v. V. Viswanath and others'**_ [2016 (2) KHC 33 (SC)]. Above all these, as per the election notification, any member of the society had every right to object to the draft voters list. If it is finalized after considering objections, the remedy of the petitioner is to file an election petition after the election is over, in accordance with the provisions of KCS Act, 1969. 16. Turning to the next point, that is the relief sought for in W.P.(C) No.19978 of 2017, since the election is notified, the first relief sought for the said purpose has become infructuous. So far as the third relief is concerned, it is in respect of appointment of an Administrative committee to manage the affairs of the society, when its term expires on 14.07.2017, by appointing any three existing members of the managing committee. 17. Having considered the rival submissions made across the Bar and perusing the pleadings and the documents, **R.P.No.585/17 & W.P.(C) Nos.19978 & 21600 of 2017** 12 I am of the considered opinion that since the election is to be held within eight days of expiry of the period of the existing managing committee, it is only appropriate that a direction is issued to appoint any three members of the managing committee to manage the day-to-day affairs of the society till such time a new committee takes over the charge. 18. Accordingly, there will be a direction to appoint any three members of the existing managing committee as administrators. However, I make it clear that no policy decision shall be taken by the said committee during its tenure. The said writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** St/05.07.2017