WA No. 295 of 2022 against the judgment in WP(C) 23331/2021, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL &** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945 WA NO. 295 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C) 23331/2021 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 K.T.JOHNSON AGED 64 YEARS MEMBERSHIP NO.4329 (OLD NO.46213), CHALAKKUDY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.R 1452, HEAD OFFICE, CHALAKKUDY, THRISSUR DISTRICT, RESIDING AT KANDAMKULATHY HOUSE, KANJIRAPPILLY, CHALAKKUDY, THRISSUR DISTRICT.** - **2 RANJITH KUMAR MEMBERSHIP NO.1025(A) (OD NO.21185), CHALAKKUDY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.R 1452, HEAD OFFICE, CHALAKKUDY, THRISSUR DISTRICT, RESIDING AT KARIPPILLY HOUSE, MATTATHURKUNNU P.O., KODAKARA, THRISSUR DISTRICT.** **BY ADVS. GEORGE POONTHOTTAM (SR.) ARUN CHANDRAN NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO-BANK TOWERS, VIKAS VHAVAN P.O. THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY.** - **2 THE ELECTORAL OFFICER (THE ASSISTANT REGISTRAR (SC/ST) OF CO-OPERATIVE SOCIETIES), CHALAKKUDY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.R 1452, HEAD OFFICE, CHALAKKUDY, THRISUSR DISTRICT-680 307.** - **3 THE RETURNING OFFICER (KORATTY UNIT INSPECTOR), CHALAKKUDY TALUK PRIMARY COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.R 1452, HEAD OFFICE, CHALAKKUDY, THRISUSR DISTRICT680 307.** **WA NO. 295 OF 2022** **2** - **4 CHALAKKUDY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.R 1452, HEAD OFFICE, CHALAKKUDY, THRISUSR DISTRICT-680 307, REPRESENTED BY ITS SECRETARY.** - **5 LEKHA JOY. D/O.JOY ANTONY, MEMBERSHIP NO.11520 (OLD NO.A 60243), BRAHMAKULATHU KUNNIKKURU, KORATTY, KINFRA P.O., THRISSUR DISTRICT-680 380.** - **THIS WRIT APPEAL HAVING COME UP FOR HEARING ON** - **20.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA NO. 295 OF 2022** **3** ## JUDGMENT ## Amit Rawal, J. 1. Appellants-petitioners being the member of the Chalakkudy Taluk Primary Co-operative Agricultural and Rural Development Bank Ltd assailed the election held on 14.11.2021 in view of the notification 8.10.2021, Ext.P2 have not been found to be successful before the Single Bench on the ground of non availment of remedy under Section 69. 2. The facts leading to the filing of the writ petition was that the Chalakkudy Taluk Primary Co-operative Agricultural and Rural Development Bank (Chalakkudy PCARDB) was formed by bifurcating Irinjalakkuda Primary Co-operative Agricultural and Rural Development Bank (Irinjalakkuda PCARDB) by amending section 28 of the Kerala Co-operative Societies Act in 2013. On 4.5.2015 draft scheme of bifurcation was approved. By the process of bifurcation, members of erstwhile Irinjalakkuda Bank alone could become members of the newly formed **WA NO. 295 OF 2022** **4** Chalakkudy PCARDB as provided under Section 28(1E)(ii) of the Act. The bifurcation was assailed in this court through WP(C) No.15917 of 2015. This Court directed the Registrar to place a draft scheme and pass appropriate orders. On 26.12.2015 Registrar passed the order approving the draft scheme. Appeal was filed against the judgment of the Single Bench which was affirmed and approved the scheme of bifurcation. Election was scheduled to be held on 14.2.2016 but it was under challenge in WP(C) No.2501 of 2016. 3. As per the order of this Court dated 21.1.2016 the authorities were directed to proceed with the election fixing 14.2.2016 as the date of poll with a rider that the result of the election shall be declared only after obtaining orders from this Court. Matter was taken up in writ appeal and directions were issued to dispose of the writ petition. Matter reached the Supreme Court and the directions was issued by the Supreme Court to file a review petition; RP No.867 of 2018 was filed. As against the order in RP an SLP was filed. Supreme Court passed an order of status **WA NO. 295 OF 2022** **5** quo and disposed of SLP with a direction to conduct election as per law and permitted to raise objection before finalizing the voters list. Election schedule was prepared vide Ext.P1. Earlier the voters list of the Society contained only 5923 members as per the provisions of Section 28(1E) (ii) of the Act. However the interim committee appointed during the bifurcation process inducted new members containing 12971 members. 4. The grievance of the appellant, petitioner was that the election could have been held for 5923 members as per the plain and simple reading of the Section 28(1E)(ii) of the Act and not for other voters and in support of the contentions relied upon the judgment of the Supreme Court in Joint Registrar of Co-operative Societies v. T.A Kuttappan (2000 KHC 389 ). 5. On the other hand learned counsel for the respondent Bank and Government Pleader supported the findings of the learned Single Bench. The judgment in Joint Registrar of Co-operative Society (supra) did not notice the provisions of Rule 41 which empowered the internal **WA NO. 295 OF 2022** **6** committee to exercise all the powers which are given to the Committee in the process of bifurcation. The Appellants have already lost the right of election petition that the limitation is one month from the date of the objection which cannot be enlarged in view of the law laid down by the Supreme Court in Reji Thomas and Others v. State of Kerala and Others (2018) 16 SCC 778 . 6. We have heard the learned counsel for the parties and appraised the paper book. Section 28(1E)(ii) of the KCS Act reads as under: 28.Appointment of committee.-(1)The general body of a society shall [constitute a committee, for a period [of] [five years] in accordance with the bye-laws and entrust the management of the affairs of the society to such committee; ## xxxxx (1E)The Special Officer so appointed shall ,- (i)take into custody or bring under his control, the property, effects and actionable claims to which the erstwhile society is, or appears to be entitled to and shall take steps as may be necessary or expedient to prevent loss or deterioration of or damage to, such property, effects and claims; (ii)take such steps for the bifurcation of area, assets and liabilities of the society and also shall take steps to register new society with the members of the society so bifurcated and constitute the committee; (iii)such bifurcation shall be completed within a period of one year from the date of commencement of the Kerala Cooperative Societies (Amendment) Ordinance, 2012 (9 of 2012). **WA NO. 295 OF 2022** **7** 7. No doubt, in the first blush, the argument of the learned counsel for the petitioner by referring to the expression 'members' would mean 'the members on bifurcation' found attractive but at the same time, it is noticed that initially, the members were 5923. Rule 41(4) of the KCS Rules reads as under: 41. Procedure regarding the constitution of committees of new societies in the case of a division of a society. ## xxxxxx 4) The interim committee of each of the new societies shall, notwithstanding anything contained in these rules or the bye-laws of the new society, exercise all the powers conferred and discharge all the duties imposed on the committee by the bye-laws of such new society. 8. In the cited judgment of Joint Registrar of Co-operative Societies (supra) was a case where on a supersession of a Society, an Administrator was appointed. In such circumstances, it was held that an Administrator cannot enroll members. There was no discussion or reference to Rule 41. Learned Single Bench relegated the appellant, petitioner to avail alternative remedy as provided under Section 69 of the Co-operative Society Act. Remedy under Section 69 of the Act can be availed within the **WA NO. 295 OF 2022** **8** prescribed time period for challenging election. In view of the ratio decidendi culled out in Reji Thomas and Others (supra), time line if elapsed, cannot be extended. No ground for interference is made out. Writ appeal is dismissed. Sd/AMIT RAWAL JUDGE sab Sd/C.S. SUDHA JUDGE