T. N. Valsalan v. Kozhikode Primary Co-operative Agricultural and Rural Development Bank Ltd. No.4362

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932** ## **WP(C).No. 25624 of 2010(C)** **---------------------------------------** **PETITIONER:** - **-------------------** ## **T.N.VALSALAN, THACHORAKKAL HOUSE, NARIKUNI, KOZHIKODE.** **BY ADVS. SRI.P.P.JACOB, SRI.T.P.GOPAKUMAR.** **RESPONDENTS:** - **------------------------** **1. THE KOZHIKODE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.4362, PUTHIYARA.P.O., KOZHIKODE-673 004. REPRESENTED BY ITS SECRETARY.** **2. THE RETURNING OFFICER, KOZHIKODE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.4362, CIVIL STATION UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) PUTHIYAR, KOZHIKODE, PIN-673 004.** **3. THE ELECTORAL OFFICER/ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), PUTHIYARA, KOZHIKODE, PIN-673 004.** **4. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-1, REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. SRI.T.A.SHAJI,** **R2 TO R4 BY SR. GOVT. PLEADER SRI. K.S. MUHAMMED HASHIM.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.25624/2010-C:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE CLAUSE 15 OF THE BYELAW OF FIRST RESPONDENT.** **EXT.P.2: COPY OF THE ELECTION NOTIFICATION PUBLISHED IN DESABHIMANI DAILY DTD. 03/08/2010.** **EXT.P.3: COPY OF THE REPRESENTATION FILED BEFORE THE R.3. DTD. 10/08/2010.** **EXT.P.4: COPY OF THE REPRESENTATION FILED BEFORE THE R.4. DTD. 10/08/2010.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **K.SURENDRA MOHAN, J. ------------------------------------------W.P.(C) No.25624 of 2010 ------------------------------------------Dated this the 19[th] August, 2010** ## **JUDGMENT** The petitioner is a member of the first respondent Society. He has filed this writ petition challenging Ext.P2 notification proposing to hold an election to the Managing Committee of the first petitioner bank on 29.8.2010. As per Ext.P2, the election is proposed to be conducted from five separate electoral constituencies delimited by the said notification. The total number of members to be elected is '9'. According to the petitioner, the delimitation of constituencies in Ext.P2 has been done by the Managing Committee in violation of the bye-laws of the Society. The bye-laws of the Society could be amended only by the general body and therefore, the action of the Managing Committee is attacked as being absolutely without authority and liable to be set aside. Further, as per Ext.P2, two seats are reserved for women, which also is alleged to be without the authority of the general body. The petitioner, therefore, prays for setting aside Ext.P2 wpc No.25624 of 2010 2 notification. 2. A counter affidavit has been filed on behalf of the first respondent-Society. In paragraph-5 of the counter affidavit what is stated is that in view of the amendment to Section 28A of the Kerala Co-operative Societies Act, 1969, (the 'Act' for short), as per the Amendment Act No.7 of 2010 that came into force on 28.4.2010, the number of women members has been enhanced to three. “Therefore, there is a statutory compulsion to reserve three seats for women. The new elected committee has to assume office immediately. Therefore, it was not at all feasible to convene a general body and make consequential amendments in the bye-laws. However, by virtue of the amended provisions in Section 28A of the Act three seats are to be reserved for women. Therefore, out of exigency of the situation and due to statutory compulsion the Managing Committee resolved to give effect to the provisions of the Act, without which the election could not be held. Accordingly, it has been resolved to reserve two more seats out of the existing general seats for women and territorial limits of those constituencies are determined by spreading over the same to that of the existing general seats. This measure is the only feasible way. Nobody is prejudiced. No right of the members residing in any part of the area of operation of the Bank has been affected. All members are entitled to vote for the candidates in all the nine constituencies. Nobody's right to contest form the general candidates is affected as well.” wpc No.25624 of 2010 3 The explanation, therefore, is that since the term of the Managing Committee is to expire on 3.9.2010, there was no sufficient time to convene a general body and to amend the bye-laws before the conduct of the election. For the above reason, it is contended that the Managing Committee has delimited the constituencies on their own. 3. Adv.P.P.Jacob who appears for the petitioner relies on Sections 27 and 28 of the Kerala Co-operative Societies Act, 1969 to contend that the supreme body as far any Cooperative Society is concerned is the general body thereof. As per Rule 35A(3)(ii), any area or constituency that is specified in the bye-laws from which the members are to be elected is also to be specified in an election notification. The above rule presupposes that the constituency that is specified should be delimited by the bye-laws. Rule 5(1)(s) provides that the conduct of elections to the committee and other bodies of the Society as provided in the bye-laws including the right of the members to be elected by different constituencies and appointment of the Returning Officer are matters with respect to which the bye-laws of a Society may make provision for. Therefore, it is the wpc No.25624 of 2010 4 General Body that is empowered to alter the bye-laws. 4. However, it is pointed out that since Section 28A of the Act has been introduced, making provision for the reservation of three seats instead of one for women candidates, the mandate of the statute had to be complied with before the elections could be conducted. Therefore, in the exigencies of the circumstances, the Managing Committee had done the task of delimitation of the constituency. A similar issue had arisen for consideration before a Division Bench of this Court in the decision reported in **Udayakaran** v **Ahammedkannu** (2004(2) KLT 969 [D.B.]). After considering the question, Cyriac Joseph, J. (as he then was) has concluded the issue at page 973 thereof, as follows: “12. It is not disputed that the authority competent to make and amend the bye-law is the General Body of the Society. S.27 of the Act also says that subject to the provisions of the Act, the Rules and the bye-laws, the final authority of a society shall vest in the General Body of the members. Therefore, in the absence of necessary provisions in the Act specifying the authority and the criteria to determine the ward/constituency for reservation under S.28A, it is for the General body of a Society to make necessary provisions in the byelaws of the society for the reservation under S.28A or specifying the authority competent to wpc No.25624 of 2010 5 determine and laying down the criteria for such determination. Since the Committee of a Society is not competent to amend the bye-laws of the Society, unless specified in the bye-laws the Committee is not competent to determine the ward or constituency for reservation under S.28A or to lay down the criteria for such determination. 13. Moreover, there is an inherent danger in conceding such arbitrary power to an existing committee of the Society to determine the constituency to be reserved under S.28A. If such a power is conceded to the Committee, the existing members of the Committee may arbitrarily exercise that power to reserve the constituency/ward to their advantage of their opponents. Such a situation will not be in the best interest of the Society or in accordance with the spirit of the provisions of the Act.” 5. The dictum referred to above apply on all fours to the facts to the present case. As cautioned by the Division Bench in paragraph-13 above, to concede the power to delimit electoral constituencies without amending the byelaws to the Managing Committee, usurping the powers of the General Body would be lead to dangerous consequences. 6. Adv.T.A.Shaji who appears for the first respondent has been at considerable strain to defend the action of the Managing Committee by pointing out that the Committee had acted in the best interests of all concerned. It is also wpc No.25624 of 2010 6 pointed out that no prejudice whatsoever has been caused to any one by the delimitation of the constituencies as undertaken by the Managing Committee. Even assuming that the above arguments are true, in the present case the Managing Committee has delimited the constituencies in one particular manner. It is not necessary that the General Body should adopt the very same method of delimitation. What is the course best suited for the first respondent Society is to be decided by the General Body which is the competent body and not by the Managing Committee. The said right of the General Body cannot be usurped by the Managing Committee, whatever be the compelling circumstances. 7. It is further pointed out that though 22 nominations were received, all the nominations except nine were rejected for one or the other reason and therefore, there is no contest to the valid nominations that are now received. Consequently, only the formality of declaring the results of the election remains, to complete the election process. For the above reason, it is contended that the petitioner may be relegated to the remedy of filing wpc No.25624 of 2010 7 an election petition, if he has any grievance. 8. In the present case, the foundation of the election itself is bad since the election notification Ext.P2 is liable to be set aside. There is no point in perpetuating the illegality by postponing the invalidation of the action. Since the very foundation of the act is wrong, the subsequent procedures adopted are also wrong and cannot be justified on any count. 9. It is further submitted by Adv.T.A.Shaji that since the term of the Managing Committee is to expire on 3.9.2010, the said Committee may be permitted to continue in office as administrators. A direction issued by this Court in an earlier writ petition, W.P.(C) No.19719 of 2005, confirmed by the judgment in Writ Appeal No.1616 of 2005 is relied on in support to the above submission. In the present case, no orders have been passed appointing an Administrative Committee for the first respondent since the term of the Managing Committee is not yet over. However, Rule 39 is a clear bar against such a course of action. Sub Rule 2 of Rule 39 specifically stipulates that all members of the Managing Committee shall vacate their wpc No.25624 of 2010 8 office on the expiry of the term of the Committee, irrespective of the date on which they were elected as members of the Committee. The propriety of permitting the Managing Committee of a Society, whose term has expired, to continue as the Administrative Committee of the Society has been considered by a Division Bench of this Court in **Joint Registrar** v **Chatha** (1999(3) KLT 139). After referring to the various decisions on the point, this Court has concluded the question in paragraph-4 of the judgment in the following words: “This court, in all the decisions referred to earlier, has only directed the Registrar of Co-operative Societies to appoint an Administrator or Administrators in accordance with the provisions contained in S.33 of the Kerala Co-operative Societies Act. We are, therefore, of the opinion that the judgment of the learned Single Judge, in so far as it directs the present Board to be appointed as Administrative Committee till the election is over, is liable to be set aside.” In view of the above, the request of the counsel for the first respondent can only be rejected. 10. For the foregoing reasons, this writ petition is allowed. Ext.P2 is set aside. It is made clear that a fresh notification for the conduct of election of the Managing wpc No.25624 of 2010 9 Committee of the Society may be issued after effecting necessary amendments to the bye-laws in conformity with the mandate under Section 28A of the Act. No costs. **K.SURENDRA MOHAN, JUDGE** css/