VanchiYOOR Co-operative Society Ltd. No.1115, Vanchiyoor, Thiruvananthapuram-695035 v. Registrar of Co-operative Societies, Thiruvananthapuram; Joint Registrar of Co-operative Societies (G), Thiruvananthapuram; Assistant Registrar of Co-operative Societies (G), Thiruvananthapuram; State Co-operative Election Commission, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 WP(C).No. 15476 of 2012 (H) --------------------------- PETITIONER : ------------------- VANCHIYOOR CO-OPERATIVE SOCIETY LTD.NO.1115 VANCHIYOOR, THIRUVANANTHAPURAM- 695035 REPRESENTED BY IT'S SECRETARY, G.S.BINU BY ADVS.SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENTS : ----------------------- 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM. - 695 035 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) THIRUVANANTHAPURAM – 695 003 3. THE ASSISTAT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) THIRUVANANTHAPURAM – 695 003. 4. THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM – 695 001. BY SPECIAL GOVT. PLEADER SRI.D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV W.P.(C).NO.15476 OF 2012 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE NOTIFICATION ISSUED BY THE STATE CO-OPERATIVE ELECTION COMMISSION DATED 10/07/07 EXT.P2 : COPY OF THE RESOLUTION DATED 9/06/12 ALONG WITH FORWARDING LETTER DATED 14/06/12 EXT.P3 : COPY OF THE LETTER DATED 8/06/12 FROM THE HEADMISTRESS EXT.P4 : COPY OF THE COMMUNICATION DATED 20/06/12 EXT.P5 : COPY OF THE RESOLUTION AND FORWARDING LETTER DATED 26/06/12 EXT.P6 : COPY OF THE COMPLAINT DATED 27/06/12 ## RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV ## **K. SURENDRA MOHAN, J. ------------------------------------------WP(C) NO.15476 OF 2012 -------------------------------------------Dated this the 9[th] day of July, 2012** ## **JUDGMENT** The petitioner, a Co-operative Society registered under the Co-operative Societies Act, 1969 (hereinafter referred to as “the Act”) has filed this writ petition complaining of inaction on Ext.P5 resolution adopted by the petitioner. 2. The term of the present Managing Committee of the petitioner society is due to expire on 10.08.2012. Therefore, the petitioner had passed Ext.P2 resolution and sought the appointment of an Electoral Officer and a Returning Officer for the purpose of conducting an election on 05.08.2012. The resolution adopted has resolved to move the Election Commission through the 2[nd] respondent. According to the petitioner, no action has been taken on Ext.P5, so far. It is alleged that time is running out and an Administrator would be appointed for the society on the expiry of the term of office of the present Managing Committee. For the above WP(C) NO.15476 OF 2012 2 reason, the petitioner seeks the issue of appropriate directions to consider Ext.P5. 3. A statement has been filed on behalf of the 3[rd] respondent by the Inspector of Co-operative Societies, Thiruvananthapuram. According to the 3[rd] respondent, the petitioner has been aware of the fact that, being a Miscellaneous society, the State Co-operative Election Commission was not the competent authority to conduct its election. Therefore, Ext.P2 resolution adopted resolving to move the Election Commission for the appointment of an Electoral Officer is not in order. When the above defect was pointed out though Ext.P4 resolution has been adopted, it is contended that the same was not considered, since the stipulated time of 60 days was not available for conduct of the election. It is for the said reason that a Returning Officer has not been appointed, according to the 3[rd] respondent. 4. I have heard Sri.Suman Chakravarthy, who appears for the petitioner as well as Sri.Somasundaram, Special Government Pleader. WP(C) NO.15476 OF 2012 3 5. According to the counsel for the petitioner, Ext.P5 resolution is only a continuation of Ext.P2 which allegedly suffers from certain defects. It is for the said reason that Ext.P5, resolution has been passed curing the defects that were pointed out. Therefore, the refusal to consider Ext.P5 on the ground that sufficient time is not there, is according to the counsel unreasonable and based on extraneous consideration. It is also contended that the said action is in violation of the dictum laid down by this Court in the various decisions on the point. 6. It is to be noted that the petitioner society had taken steps to have an election conducted, sufficiently early, as evident from Ext.P2. As per resolution dated 09.06.2012, it has been resolved to conduct an election on 05.08.2012 at the G.H.S, Vanchiyoor, Thiruvananthapuram. However, the resolution states that the Election Commission is to be approached, through the 2[nd] respondent for the purpose of appointing an Electoral Officer and Returning Officer. I notice that Ext.P2 does not suffer from any other defect. But since, WP(C) NO.15476 OF 2012 **==> picture [7 x 10] intentionally omitted <==** what the resolution has sought for, is to approach the Election Commission through the 2[nd] respondent, the 2[nd] respondent could have to appointed the Returning Officer to conduct the election, so as to save time. However, the petitioner was instead directed to cure the defects. In the above circumstances, Ext.P5 has been passed. The only objection to Ext.P5 is that from the date of the said resolution, the time of 60 days stipulated by Section 35(1) is not available. It has been held by this Court while dealing with a similar situation in the decision reported in [( **1993(2) KLT 701) Cherian K.Anthrayose v. Joint Registrar],** in paragraph 7 as follows : “The resolution correcting the earlier mistake was passed on 19-8-1993. There are clear 37 days available between the date of the second resolution (amending resolution) and the date fixed for election. I think that this period is sufficient for completing the process of election since I am inclined to agree with the view expressed by His Lordship Justice T.L.Viswanatha Iyer that the period of 60 days in between the resolution and the date of election is not mandatory in that sense.” WP(C) NO.15476 OF 2012 5 ## A similar view has been taken by a Division Bench of this Court in [( **1996 (1) KLT 669) George Abraham v. Asst. Registrar of Co-op. Societies]:** “ The period of 60 days mentioned there in is taken as sufficient time to enable the election to be held and the new Board of Directors constituted. The said period can only be treated as directive and cannot be taken as a mandatory provision. In other words, the committee in office is to pass a resolution sufficiently in advance so as to enable the new Board of Directors to come into existence before the expiration of its term. A resolution as contemplated by Rule 35(1) will not be illegal or void on account of the reason that 60 clear days did not exist from the date of its passing and the date of expiry of the term of the Board of Directors. Viewed in that light the 60 days period cannot be treated as infallible. The words “shall meet” used in Rule 35(1) cannot be treated as absolute. The purpose of the said provision is to have all proceedings for a proper election to the Board of Directors complied with in terms of the later part of Rule 35. It is to ensure that new Board of Directors take charge on the expiry of the term of the existing Board. 7. In view of the above, I am satisfied that the refusal of the 2[nd] respondent to take further action on the basis of Ext.P5 is not justified. The learned Special Government WP(C) NO.15476 OF 2012 6 Pleader draws my attention to a circular issued by the Registrar of Co-operative Societies, No.C.P.(1) 30056/91 to point out that the Registrar has directed to ensure that at least 40 days time is available which is necessary for completion of the electoral process. It is to be noticed that the said time is available in the present case. Infact, in the decision reported in 1993 (2) KLT 701 (Supra) this Court ordered the election to be conducted, though the time available was only 37 days. For the above reasons, the petitioner is entitled to succeed. This writ petition is accordingly allowed, directing respondents 1 and 3 to take necessary action on Ext.P5 by appointing a Returning Officer forthwith for the purpose of conducting an election to the Managing Committee of the petitioner society. ## **K. SURENDRA MOHAN, JUDGE** AV