High Court of KeralaSingle JudgeWrit petition dismissed; election to proceed; c...

Sadasivan Nair v. State Co-operative Election Commissioner and others

Case / Petition Number:WP(C).No. 27660 of 2013 (F)
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Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
Judgment Date
2013-12-11
Court Decision / Holding
Writ petition dismissed; election process to proceed; petitioner to bear costs.
Final Disposition
Writ petition dismissed; election to proceed; costs to petitioner.

Parties to the Case

Appellants / Petitioners

  • Sadasivan Nair

Respondents

  • State Co-operative Election Commissioner
  • Registrar of Co-operative Societies
  • Joint Registrar of Co-operative Societies
  • Karikkamancodu Service Co-operative Bank Ltd.
  • Secretary, Karikkamodru Service Co-operative Bank Ltd.
  • President, Managing Committee Karikkamancodu Service Co-operative Bank Ltd.
  • Panachamoodu Service Co-operative Bank Ltd.

Legal Representation & Advocates

Counsels for Petitioners

  • • S.V. Premakumaran Nair
  • • R.T. Pradeep

Counsels for Respondents

  • • B.S. Swathy Kumar
  • • Remya Murali
  • • Ashish Mohan
  • • D. Somasundaram (Government Pleader)

Case Synopsis & Summary

The petitioner, a member of the Karikkamancodu Service Co-operative Bank, challenges the election scheduled for 15 December 2013. He contends that the term of the Managing Committee expires in June 2014, so there is no warrant to conduct an election six months before expiry. He relies on Sugathan v. Joint Registrar (1993) (1 KLT 927) to argue that at least 60 days should elapse between the expiry of the term and the election, and that elections should be reasonably before expiry but not too far in advance. The decision in Sugathan is cited to highlight that elections cannot be scheduled arbitrarily far ahead of expiry. The petition also cites George-Abraham v. Registrar of Co- op. Societies (1996) (1 KLT 669) to contend that Rule 35(1)’s timing is not strictly mandatory, and that a resolution passed within 60 days of expiry is not automatically illegal. The respondents contend that there must be rational justification for scheduling elections early to prevent undue expenses and that the Election Commission has already accepted the resolution, with the process having progressed. The High Court emphasizes that there must be valid reasons behind early scheduling and, since substantial process and expenditure have already occurred, refuses to intervene under Article 226. The petition is dismissed with costs, allowing the election to proceed.

Provisions of Law Cited

Rule 35(1)Constitution of India, Article 226

Legal Doctrines & Maxims

  • Directory nature of Rule 35(1) (not mandatory)
  • 60 days rule under Rule 35(1) is directory, not mandatory (Sugathan and George-Abraham context)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that the Committee term runs until June 2014, so there was no justification for holding elections six months before expiry. Relying on Sugathan v. Joint Registrar, he urged that there must be a minimum 60-day window and that scheduling in December 2013 for an expiry in June 2014 is premature. He contended that the Election Commission’s acceptance and start of the process does not override the need for rational timing and could impose unnecessary costs on the society. He sought stay or quashing of the notification on grounds of premature scheduling and maladministration of ward amendments, which he claimed had not been properly registered at the relevant time; the court should exercise caution to protect the Society’s welfare.

Contentions of Respondents

Respondents argued that there must be rationality behind scheduling elections and that the Election Commission’s acceptance of the resolution and the ongoing process justify proceeding with the election. They asserted that Rule 35(1) timing is directory rather than mandatory, and even if 60 days is not strictly observed, a valid resolution could still be timely. They maintained that postponing the election would incur further expenses and could disrupt the functioning of the societies; the court was urged to allow the process to continue given the expenditures already incurred and the public interest in timely governance of the cooperative societies.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Sugathan v. Joint Registrar1993 (1) KLT 927Mentioned OnlyCited to discuss the 60-day window but not treated as binding; used to emphasize the need for reasonable timing, not an unconditional rule.
George-Abraham v. Registrar of Co-op. Societies1996 (1) KLT 669PositiveCited to support that the Rule 35(1) timing is directory and not mandatory; suggests even less than 60 days can be permissible if justified.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 11TH DAY OF DECEMBER 2013/20TH AGRAHAYANA, 1935 WP(C).No. 27660 of 2013 (F) ---------------------------- ## PETITIONER(S)/PETITIONER:-: ---------------------------------------------------- SADASIVAN NAIR, AGED 50 YEARS, S/O.THANKAPPAN PILLAI THETTIYARA MEKKUMKARA PUTHENVEEDU, MANNAMKONAM P.O. MEMBER NO.4486 KARIKKAKANCODU SERVICE CO-OPERATIVE BANK LTD.NO.1119 KUDAYAL P.O. BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP RESPONDENT(S)/RESPONDENTS:-: -------------------------------------------------------- 1. STATE CO-OPERATIVE ELECTION COMMISSIONER OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSIONER THIRUVANANTHAPURAM.-695001 2. REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM.-695001 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM.-695001 4. KARIKKAMANCODU SERVICE CO-OPERATIVE BANK LTD.NO.1119, KUDAYAL P.O., REPRESENTED BY ITS SECRETARY.-695125 5. SECRETARY, KARIKKAMANCODU SERVICE CO-OPERATIVE BANK LTD.NO.1119 KUDAYAL P.O.-695125 6. PRESIDENT, MANAGING COMMITTEE KARIKKAMANCODU SERVICE CO-OPERATIVE BANK LTD.NO.1119 KUDAYAL P.O.-695125 7. PANACHAMOODU SERVICE CO-OPERATIVE BANK LTD. T-126, PANACHAMOODU P.O., REPRESENTED BY ITS SECRETARY.-695125 BY SRI.B.S.SWATHY KUMAR BY SRI.REMYA MURALI BY SRI.ASHISH MOHAN BY GOVERNMENT PLEADER SRI.D. SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27660 of 2013 (F) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1. TRUE COPY OF THE IDENTITY CARD OF PETITIONER DATED 19.12.92 ISSUED BY 4TH RESPONDENT/SERVICE CO-OPERATIVE BANK. EXHIBIT P2. TRUE COPY OF THE NOTICE OF GENERAL BODY MEETING TO CONSIDER AMENDMENT. EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED 07.11.2013 BEFORE 1ST RESPONDENT. EXHIBIT P4- TRUE COPY OF THE ELECTION NOTIFICATION DATED 1.11.13 PUBLISHED IN KERALA KAUMUDI DAILY ON 12.11.13 //true copy// P.A.To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 27660 of 2013 - - - - - - - - - - - - - - - - Dated 11[th] December, 2013 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner is a member of the 4[th] respondent Society and challenges the election scheduled on 15.12.2013. The petitioner's contention is that the term of the Managing Committee itself expires only in June 2014 and there was no warrant for an election to be conducted six months in advance of the expiry of the term. The petitioner also relies on a judgment of this Court reported in **Sugathan v. Joint Registrar (1993 (1) KLT 927)** which considered the scope of the words at least “60 days” in sub rule (1) of Rule 35 and held that there should be a minimum of 60 days from the election and it indicated that the election should be reasonably earlier from the date of the expiry of the term of the Committee. This Court also found in the said decision that though Rule 35 would indicate that it could be slightly beyond the 60 days from the date of expiration of its term, it cannot be said that an election can be scheduled and a resolution passed long before 60 **27660/13** 2 days, long in advance of the date of expiry of the term. In that case, the term of the Committee was expiring on 13.6.1993 and the election to the Managing Committee was to be held on 7.3.1993. The period in the present case is further more and the learned counsel urges that the election be stayed. 2. It is to be noticed that a Division Bench in **George** **- Abraham v. Registrar of Co op. Societies (1996 (1) KLT 669)** considered the effect of a resolution passed within 60 days of the expiration of the term and found that a resolution as contemplated by Rule 35(1) will not be illegal or void on account of the sole reason that, there was no intervening 60 days between the date of its passing and the date of expiry of the term of the Board of Directors. It was also held that the prescription in the said Rule is merely directory and cannot be treated as mandatory. If even 60 days was not mandatory and there could be a resolution passed with less than 60 days from the expiry of the term of the Managing Committee, it could be earlier too is the contention of the **27660/13** 3 respondents. 3. I have heard the learned Special Government Pleader also who would submit that there should be some rationale behind the decision to schedule an election far earlier to the expiration of the term, since the Managing Committee at its pleasure cannot go out of office and convene an election. That would necessarily mulct the Society with undue expenses and in the context of the Societies being formed for the benefit of its members and going by the spirit of the enactment, such action would not be permissible, is the contention. This Court finds that even if there is no interdiction either way and the prescription of 60 days is merely directory, there should be valid reasons behind such decision. The Committee cannot merely act on their whim or for any extraneous consideration, not connected with the welfare of the Society. 4. In the context of the submission above, what assumes significance is that the election has now been scheduled to **27660/13** 4 15.12.2013 and the entire process is over. What remains is only the polling and the expenses to the Society have already been incurred. **Sugathan** (supra) was a case in which when election was resolved to be conducted long prior to the expiry of term of the Managing Committee, the Registrar refused to appoint a Returning Officer. That was challenged and this Court held that there was no sustainable reason for holding the election long prior to the expiry of the Managing Committee term and upheld the order of the Registrar. In the instant case it is pertinent that the Election Commission has accepted the resolution and the election process has commenced and has considerably proceeded. 5. The petitioner, a member of the Society, was before this Court on 11.11.2013 with this writ petition. Admittedly, the notification was published in a vernacular newspaper on 12.12.2013 after which, the petitioner moved an application for stay of the election, ie., I.A.15659 of 2013 on 20.11.2013 and also took out notice by special messenger on 26.11.2013. He then sought an **27660/13** 5 amendment, to challenge the election notification, as per I.A.16244 of 2013. The said I.A was filed on 1.12.2013. Today, when the writ petition came up for hearing, it is seen that the election itself is scheduled on 15.12.2013. Even taking into consideration the submission of the learned Special Government Pleader, Cooperation, that considerable expenditure will be involved in conducting an election, nothing could be done at this stage, since the expenditure had already been incurred and the election is scheduled on 15.12.2013. To stop the election at this stage would only be detrimental to the Society. 6. In the circumstances stated above, this Court is of the opinion that the discretion conferred under Article 226 of the Constitution of India cannot be invoked in the present case, going by the facts. Petitioner also has a contention that two wards specified in the election notification are outside the area of operation and though there is an amendment proposed, such amendment has not been registered. The learned counsel **27660/13** 6 appearing for the respondents however, asserts that the amendment has been approved by Annexure R6(a) and (b). That would be a valid contention, if at all, in an Election Petition. Be that as it may, this Court is not entering on that dispute since that would be best left to be considered in a properly instituted Election Petition. With the above observations the writ petition is dismissed, leaving the parties to suffer their costs. ## **SD/-** **K.VINOD CHANDRAN, Judge** Mrcs