VELLANADU SERVICE CO-OPERATIVE BANK LTD. & S. KRISHNAKUMAR v. STATE CO-OPERATIVE ELECTION COMMISSION, JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ADDL. R4, ADDL. R5

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933** ## **WP(C).No. 30775 of 2011 (V)** **---------------------------------------** **PETITIONERS: ---------------------** **1. VELLANADU SERVICE CO-OPERATIVE BANK LTD. NO. 2379, VELLANADU,VELLANADU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS PRESIDENT.** **2. S.KRISHNAKUMAR, PRESIDENT, VELLANADU SERVICE CO-OPERATIVE BANK LTD., NO. 2379, VELLANADU,VELLANADU VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.THOMAS ABRAHAM, SMT.MERCIAMMA MATHEW, SRI.K.S.HARIDAS** , **SRI.V.RENJITH KUMAR.** **RESPONDENTS:** **------------------------** **1. STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSION, TRIVANDRUM- 695 001.** **2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), TRIVANDRUM DISTRICT, TRIVANDRUM- 695 001.** **3. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), NEDUMANGAD, TRIVANDRUM 69.** ## **W.P.(C).NO.30775/2011-V:** ## ***ADDL. R4.IMPLEADED:** **4. V.SASIDHARAN NAIR, ADIYILA VEEDU, VALIYARA, VELLANAD P.O, THIRUVANNATHAPURAM DISTRICT.** - **ADDL. R4 IS IMPLEADED AS PER ORDER IN IA NO. 18982/11 DTD. 25/11/11.** ## ****ADDL.R5. IMPLEADED:** **5. G.SANTHOSH KUMAR, AGED 35 YEARS, S/O. GANGADHARAN PILLAI, VADAKKUMKARA MELE PUTHENVEEDU, VALIYARA, VELLANADU.P.O., NEDUMANGADU, THIRUVANANTHAPURAM.** ****ADDL.R5 IS IMPLEADED AS PER ORDER DATED 22/02/2012 IN I.A. NO.19232/2011.** **R1 TO R3 BY SPL. GOVT. PLEADER SRI. D. SOMASUNDARAM, ADDL.R4 BY ADVS. SRI.M.SHIRAJUDEEN,** **DR.K.P.SATHEESAN, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY, SRI.ANOOP.V.NAIR, ADDL.R5 BY ADVS. SRI. T.R. HARIKUMAR, SRI. PRASAD CHANDRAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2012, ALONG WITH W.P.(C).NO. 31007/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.30775/2011-V:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:-** ## **EXT.P.1: COPY OF THE RESOLUTION HELD ON 15/10/2011.** ## **EXT.P.2: COPY OF THE PROFORMA AND OTHER DOCUMENTS SENT TO THE R.1. COMMISSION THROUGH THE 2ND AND 3RD RESPONDENTS.** **EXT.P.3: COPY OF THE RECEIPT DTD. 22/10/2011 ISSUED BY THE R.3. REGARDING THE RECEIPT OF EXT.P.2.** ## **EXT.P.4: COPY OF THE LETTER DTD. 25/10/2011.** **EXT.P.5: COPY OF THE RESOLUTION NO.1088 DTD. 15/11/2011 PASSED IN THE 76TH MEETING OF THE MANAGING COMMITTEE.** ## **RESPONDENTS' EXHIBITS:-** **EXT.R4.A: COPY OF THE COMPLAINT FILED BY THE 196 MEMBERS BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DTD. 24/10/2011.** **EXT.R4.B: COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE DEPUTY REGISTRAR (ADMINISTRATION), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM DTD. 24/10/2011.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** ## **Prv.** **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).Nos.30775 & 31007 of 2011 ----------------------------------------Dated this the 22[nd] day of February, 2012** ## **JUDGMENT** W.P.(C)No.30775 of 2011: The prayer in this writ petition filed by a co-operative society and its President, who was in office till 28.12.2011, is for an order directing the respondents to appoint a Returning Officer and an Electoral Officer to conduct the elections on 18.12.2011 pursuant to Ext.P1 resolution adopted by the Managing Committee of the first petitioner society on 15.10.2011. 2. W.P.(C)No.31007 of 2011 is filed by the very same petitioners challenging Ext.P4 letter dated 14.11.2011 sent by the State Co-operative Election Commission to the Registrar of Co-operative Societies wherein the State Co-operative Election Commission took the stand that in view of the amendments to the Act, especially the introduction of section 28(1C), elections can be held only after the bye-laws are amended to make them conform to the Kerala Co-operative Societies Act, 1969, as amended. 3. When W.P.(C)No.31007 of 2011 came up for admission on 30.11.2011, this Court after hearing the learned counsel on **W.P(C).Nos.30775 & 31007 of 2011** -:2:- ## both sides passed the following order:- _“Admit. Issue notice to the respondents by special messenger at the petitioners' expense._ _2. Heard Sri.Thomas Abraham, learned counsel appearing for the petitioners, Sri.D.Somasundaram, learned Special Government Pleader appearing for the official respondents and Dr.K.P.Satheesan, learned counsel appearing for the additional fourth respondent in the connected writ petition W.P.(C) No. 30775 of 2011, which has already been admitted and is posted for hearing today along with this writ petition._ _3. The managing committee of the first petitioner society presently in office was elected on 24.12.2006 and took charge on 29.12.2006. The term of the said committee will expire on 28.12.2011. The managing committee of the first petitioner society that met on 15.10.2011 resolved, as can be seen from Ext.P1, to hold elections to elect a new managing committee on 18.12.2011 and to request the State Co-operative Election Commission to appoint a Returning Officer for that purpose. As per the byelaws the managing committee consists of 9 members. The managing committee also resolved to reserve 3 seats for women candidates, one seat for candidates belonging to the scheduled castes/scheduled tribes and one seat for depositors, having regard to the amendments introduced to the Kerala Co-operative Societies Act with effect from 28.4.2010 by Act 7 of 2010. The managing committee also resolved to identify the wards. A meeting of the general body of the first petitioner society was held on 23.10.2011. One of the items placed before the general body for its consideration was a proposal to amend the byelaws including bye-law 31(b) which stipulated that the managing committee shall consist of 9 members of which one person shall be elected from the constituency reserved for women candidates and one from the constituency reserved for the scheduled castes/scheduled tribes. It is also stipulated therein that the remaining 7 members shall be elected on_ -:3:- ## **W.P(C).Nos.30775 & 31007 of 2011** _ward basis. The managing committee had placed before the general body a proposal to amend bye-law 31(b). As per the proposed amendment, the managing committee will consist of 11 members out of which one shall be a member belonging to the scheduled castes/scheduled tribes, three shall be women members and one shall be a depositor having a deposit of more than Rs.10,000/-. It is stipulated that the person seeking election in the depositor's constituency should have a deposit in his own name and so long as he continues to be a member of the managing committee, he should not withdraw the deposit or take a loan on the security of the deposit or encumber the deposit. The general body of the first petitioner society that met on 23.10.2011 resolved as per resolution No.12 to approve the amendment to bye-law 31(b) unanimously and also approved other amendments proposed to the bye-laws. However, having regard to the fact that the registration of the amendment to bye-law 31(b) may not be possible before the term of the managing committee now in office expires namely, before 28.12.2011, the general body also resolved as can be seen from Ext.P2 to hold elections to elect 9 members as per the existing byelaw and to reserve 3 seats for women members, one seat for members belonging to the scheduled castes/scheduled tribes and one seat for depositors. It is stated that though the resolution adopted by the managing committee on 15.10.2011 was forwarded to the State Co-Operative Election Commission and the State Co-operative Election Commission in turn forwarded the request made by the managing committee to hold elections on 18.12.2011 to the Assistant Registrar of Co-operative Societies (General) along with Ext.P3 letter dated 25.10.2011 and the State Co-operative Election Commission sent a letter to the Joint Registrar of Co-operative Societies on 27.10.2011 recommending the appointment of the Assistant Registrar of Co-operative Societies (General) Nedumangad as Electoral Officer and the Unit Inspector, Kattakada as Returning Officer, the State Co-operative Election Commission sent Ext.P4 letter dated 14.11.2011 wherein relying on the decision of a Division Bench of this Court in_ _**Udayakumaran v.**_ -:4:- ## **W.P(C).Nos.30775 & 31007 of 2011** _**Ahammedkannu** (2004 (2) KLT 969) the State Election Commission took the stand that as the wards have been identified by the managing committee and not by the general body, the elections cannot be held. By that letter, the State Co-operative Election Commission also called upon the Joint Registrar of Cooperative Societies (General), Thiruvananthapuram to forward the proposal to hold elections after the byelaws are amended. Ext.P4 is under challenge in this writ petition._ _4. The second respondent has filed a statement dated 23.11.2011 wherein it is stated that as per byelaw 31(b) as it originally stood, which has not so far been amended, the election has to be on ward basis, that the wards have not been identified by the general body but only by the managing committee and therefore the elections cannot be held unless the wards are identified by the general body. With reference to Ext.P2 resolution it is contended that it is not in accordance with the provisions contained in bye-law 31(b) which requires the elections to be on ward basis. There is however no reference to the resolution adopted by the general body on 23.10.2011 whereby it resolved to amend bye-law 31(b) in the manner indicated earlier. Sri.D.Somasundaram, learned Special Government Pleader appearing for the respondents submitted that the respondents are unaware of any such resolution having been passed for the reason that a request to register the amendment to bye-law 31(b) along with the other amendments to the bye-laws has not so far been received by respondents 2 and 3 and therefore no reference was made to that aspect of the matter in the statement dated 23.11.2011. The learned Special Government Pleader submitted that it was only during the course of arguments by the learned counsel for the petitioners that he came to know that the general body has approved the amendments to the bye-law 31 (b) and other bye-laws. The learned Special Government Pleader submitted that even assuming that the general body has approved the amendments to the bye-laws, the amended bye-laws will take effect only after it is registered and registration can be_ **W.P(C).Nos.30775 & 31007 of 2011** -:5:- _granted only after the procedure prescribed in section 12 of the Kerala Co-operative Societies Act and rules 9 and 12 of the Kerala Co-operative Societies Rules is complied with._ _5. Faced with that situation, the learned counsel for the petitioners submitted with reference to the despatch register maintained by the first petitioner society that a request to register the amendments to the bye-laws was served in person in the office of the Assistant Registrar of Co-operative Societies on 14.11.2011. The learned counsel also made available to me the original of the said register. Though the despatch register contains an entry to the effect that the resolution adopted by the general body was forwarded to the Joint Registrar of Co-operative Societies as well as the Assistant Registrar of Cooperative Societies, Nedumangad on 14.11.2011, the Assistant Registrar of Co-operative Societies has not acknowledged receipt of an application to register the amendments to the bye-laws approved by the general body._ _6. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the minutes book wherein the decision of the general body that met on 23.10.2011 has been recorded. Though the learned counsel appearing for the additional fourth respondent in W.P. (C) No. 30775 of 2011 contended that no amendment to the bye-laws was carried out in the meting held on 23.10.2011, the attendance register as well as the minutes book disclose that various amendment to the bye-laws including bye-law 31(b) were placed before the general body and were approved. The attendance register discloses that 292 members had participated in the meeting of the general body. However 2 of the members have stated, after the 207[th] person present in the meeting recorded his attendance, that they are boycotting the meting. Even after the said two members wrote in the attendance register that they are boycotting the meeting, 85 members have signed the attendance register. In any case, it is evident that before the two members recorded that they are_ **W.P(C).Nos.30775 & 31007 of 2011** -:6:- _boycotting the meeting, 207 members were present. The quorum required for a general body meeting of the first petitioner society as per its existing bye-laws is 25. Therefore, it cannot be said that there were no required quorum for the meeting._ _7. Then the only question is whether the amendments to the bye-laws, which were approved by the general body, have been forwarded to the Joint Registrar of Co-operative Societies through the Assistant Registrar of Co-operative Societies for registration. Though it is claimed that it was forwarded to the Joint Registrar of Co-operative Societies through the Assistant Registrar of Cooperative Societies, there is no material to show that it has been received by the Assistant Registrar of Cooperative Societies or the Joint Registrar of Cooperative Societies. In such circumstances as there is prima facie evidence to show that the general body of the first petitioner society has approved the amendments to the bye-laws, I am of the opinion that the Secretary of the first petitioner society should submit an application in the manner prescribed in rule 9 of the Kerala Co-operative Societies Rules along with the documents required to be sent along with such an application by delivering it personally in the office of the Assistant Registrar of Co-operative Societies, Nedumangad along with a copy of this order. The Assistant Registrar of Co-operative Societies, Nedumangad shall upon receipt of the application verify whether the application contains the particulars referred to in rule 9(1)(3) and give an acknowledgment in writing to the secretary of the first petitioner society regarding receipt of the application to register the amendments to the bye-laws of the first petitioner society. The Assistant Registrar shall forward the application to the Joint Registrar of Cooperative Societies within one week from the date on which the application to register the amendments to the bye-laws is submitted to him together with his remarks. The Joint Registrar of Co-operative Societies shall thereupon consider the application after following the procedure prescribed in section 12(2) of the Act and take an appropriate decision thereon expeditiously_ ## **W.P(C).Nos.30775 & 31007 of 2011** ## -:7:- _and in any event within one month from the date of receipt of the application from the Assistant Registrar._ _Post for further orders in W.P.(C) No. 30775 of 2011 on 12.12.2011 to consider the question whether in the event of elections not being held prior to 28.12.2011 any three members of the managing committee now in office can be appointed as members of the Administrative Committee of the first petitioner society under section 33 of the Act having regard to the fact that till today no steps to supersede the managing committee now in office under section 32 of the Act has been initiated. Respondents 2 and 3 shall file an affidavit or statement with reference to that aspect on or before 12.12.2011.”_ 4. W.P.(C)No.31007 of 2011 thereafter again came up for hearing on 21.12.2011. On that day, taking note of the submission made by the learned Special Government Pleader that an enquiry under section 65 of the Kerala Co-operative Societies Act is in progress this Court passed an interim order dated 21.12.2011 to the effect that the members of the Managing Committee then in office cannot be appointed as members of the administrative committee. This Court also noticed that the time limit fixed by this Court in the order passed by this Court on 30.11.2011 for the Joint Registrar of Co-operative Societies to take a decision on the request to register the amendments to the bye-laws will expire only in the month of February 2012. This Court accordingly directed that **W.P(C).Nos.30775 & 31007 of 2011** -:8:- these writ petitions be posted for hearing in the first week of February, 2012. 5. When the writ petitions came up for hearing today, Sri.D.Somasundaram, learned Special Government Pleader, submitted on instructions that the bye-laws as amended by the General Body of the first petitioner society at its meeting held on 23.10.2011 were registered by the Joint Registrar of Cooperative Societies (General) Trivandrum on 6.1.2012 and therefore, elections can be held by the Administrator appointed by the Joint Registrar of Co-operative Societies. Sri.Thomas Abraham, learned counsel appearing for the petitioners submitted that as the term of the previous Managing Committee expired on 28.12.2011 and as nearly two months have passed thereafter, the Administrator presently in management may be directed to take steps to hold the elections at the earliest. 6. This Court had by the interim order passed on 30.11.2011 held that the elections cannot be held pursuant to the resolution adopted by the Managing Committee on 15.10.2011 only for the reason that without an amendment of the bye-laws, the amended provisions of the Act cannot be ## **W.P(C).Nos.30775 & 31007 of 2011** -:9:- given effect to. In such circumstances, as the bye-laws have been amended and the amendments registered on 6.1.2012, I am of the opinion that the Administrator presently in office should pass a resolution regarding the conduct of the elections and thereafter move the State Co-operative Election Commission to have the elections held. I accordingly dispose of the writ petitions with the following directions:- (1) The Administrator of the first petitioner society presently in management of its affairs, shall within two weeks from the date on which the petitioners produce a certified copy of this judgment before him, pass a resolution fixing the date, time and place for the conduct of the elections to elect a new committee for the society and move the State Election Commission to have the elections held in the manner stipulated in rule 35A of the Kerala Co-operative Societies Rules, 1969. (2) The Assistant Registrar of Co-operative Societies (General), Nedumangad, the Joint Registrar of Co-operative Societies (General), Trivandrum and the State Co-operative Election Commission, Trivandrum shall thereupon take such steps as are necessary in law to have the elections held and ## **W.P(C).Nos.30775 & 31007 of 2011** ## -:10:- the results declared within an outer limit of three months from the date on which the petitioner produces a certified copy of this judgment before the Administrator of the first petitioner society. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).Nos. 30775 and 31007 of 2011 ----------------------------** ## **JUDGMENT** **22[nd] February, 2012**