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1975 DIGILAW 142 (KER)

DEVASSY v. ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES

1975-06-19

T.CHANDRASEKHARA MENON

body1975
Judgment :- 1. Alleging that he is a delegate of a member Society of the 2nd respondent Bank (hereinafter referred to as the Bank) the petitioner has moved this court for a writ of certiorari to quash Ex-P3 order passed by the Assistant Registrar of Co-operative Societies (General) who is the returning officer for election of the Board of Directors of the Bank by which the petitioner's objection to the list of voters published as per R.35 of the Co-operative Societies Rules (hereinafter called the Rules) has been overruled. The petitioner has also sought for a writ of mandamus for directing the 1st respondent to prepare and publish a list of voters for the purpose of election of the Board of Directors of the Bank as required by R.35(3)(b) of the Rules. The petitioner's case is as follows: 2. As per Byelaw 21 of the Bank the Board of Directors shall call before the end of June every year an annual meeting of the General Body of the Bank consisting of representatives of A Class members and such representatives of B Class members who may be serving on the Board of Directors at which meeting the election of the members to the Board of Directors if a new Board is to take charge in the following year is to be conducted. Byelaw 11 provides that every co-operative society working within the area of operation of the Bank and the Kerala State Co-operative Bank shall be eligible for admission as member. Under Byelaw 21 the society shall hold general body atleast once in a year. It is incumbent on the Board of Directors of the Society as per Byelaw 20 to maintain a list of members on the rolls of the Bank who are qualified to vote at general body meetings of the Bank and shall bring such list upto-date within a fortnight before each meeting of the General Body. 3. For the election to the Board of Directors of the Bank for this year a general body meeting is fixed to be held on 22-6-1975. The 1st respondent Assistant Registrar of Co-operative Societies (General) Trichur is the returning officer for the election. He had published a list on 24-5-1975 of the members eligible to vote at the General Body meeting. Ex-Pi is that list. This list contains only names of members of the society affiliated to the Bank. The 1st respondent Assistant Registrar of Co-operative Societies (General) Trichur is the returning officer for the election. He had published a list on 24-5-1975 of the members eligible to vote at the General Body meeting. Ex-Pi is that list. This list contains only names of members of the society affiliated to the Bank. The petitioner contends that it is not clear from it as to where the delegates of the Society entitled to participate at the election and vote at the General Body meeting. The list contains names of some Societies specified in para 2 of the O. P., which Societies are not now functioning and which have now vested in the liquidator for the purpose of liquidation. It is also contended that in regard to some of the Societies the period of office of Committees has expired and also the period of office of the respective delegates. To the list Ex-Pi the petitioner is alleged to have filed objections, copy of which is Ex-P2. These objections were overruled by Ex-P3. Therefore the petitioner has sought to quash Ex-P3 in this writ petition. The main contention advanced on behalf of the petitioner is that there has not been proper publication of the list as contemplated under R.35 and therefore the same is not a proper or valid list. 4. In the counter-affidavit filed on behalf of the second respondent the following contentions are raised: (1) The petitioner is not a delegate of a member Society as stated by him. He has no locus standi to file this petition. (2) The petitioner has an effective alternative remedy under S.69 of the Kerala Co-operative Societies Act. Dispute in connection with an election can be raised only after the election. Under Art.226 of the Constitution there is no scope to entertain a dispute as to the election of the managing committee of the society. It is said that S.69 (2) (c) covers the dispute that is raised in this petition. (3) As per R.35 (3) (b) of the Rules it is only necessary for the Committee to prepare a list of members qualified to vote at the election. The said rule does not require the names of the delegates also to be shown in the list. The list of members referred to in the Rule can only be the members as defined in Byelaw 11 of the Bank. The said rule does not require the names of the delegates also to be shown in the list. The list of members referred to in the Rule can only be the members as defined in Byelaw 11 of the Bank. Such a list has been prepared in the instant case. In regard to the Societies under liquidation it is stated that the existing delegates of such societies will continue till the cancellation of the registration of such societies, which will be done only after the final winding up of the affairs of the Society and that would be clear from R.46 of the Rules. (4) It is also contended that the term of the delegates of the member Society will not automatically end with the terms of the Managing Committee of the Society. As per R.46 (a) the term of the delegate expires only if the Society which elected him as a delegate withdraws him or elects another delegate in his place. 5. In regard to the first contention as to whether the petitioner has locus standi to file this petition it might be stated here that the petitioner's objection Ext.P2 has been dismissed by the Returning Officer not on the ground that he has no right to raise such objection; the impugned order proceeds on the basis that the petitioner can raise such objections. In the circumstances it is difficult for me to hold that the petitioner has no locus standi as such in the matter. In any view of the matter it is not disputed that he is member of a Member Society of the Bank. The question whether he is a delegate representing the Member Society cannot be resolved here as disputed issues of facts will have to be resolved in deciding the same; it may not be proper for this court under Art.226 to go into that question. Until recently there was a widespread impression that locus standi was confined to persons with a direct interest in the subject-matter of the impugned order. Though no doubt it is true as Lord Denning observed in R. v. Paddington Valuation Officer, ex. p. Peachey property Corpn. Until recently there was a widespread impression that locus standi was confined to persons with a direct interest in the subject-matter of the impugned order. Though no doubt it is true as Lord Denning observed in R. v. Paddington Valuation Officer, ex. p. Peachey property Corpn. Ltd. ((1966) I Q B. 380 at 401) that the court "would not listen, of course, to a mere busybody who was interfering in things which did not concern him" certiorari being discretionary remedy, the discretion of the court extends to permitting an application to be made by any member of the public who might have some interests in the matter. Recent cases would indicate that the word 'person aggrieved' has been used to take in from within a wide field. As Professor De Smith observes in his Book on Judicial Review of Administrative Action pages 431-432: "It is surely more satisfactory for the courts to adopt a flexible attitude, showing a willingness to entertain applications by any person claiming to have a direct and substantial grievance, than for them to pay lip-service, on the one hand, to the idea that any member of the public may apply, end on the other hand to confine locus standi in practice to persons whose vested legal rights have been impaired." 6. Then arises the question whether this court could entertain the writ in view of specific provision in S.69 of the Kerala Co-operative Societies Act, 1969. Then arises the question whether this court could entertain the writ in view of specific provision in S.69 of the Kerala Co-operative Societies Act, 1969. S 69 is as follows: "Disputes to be referred to Registrar: (1) Notwithstanding anything contained in any law for the time being in force, if a dispute arises (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society; or (c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee, or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or (d) between the society and any other society; or (e) between a society and the members of a society affiliated to it; or (f) between the society and a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or (g) between the society and a surety of a member, past member, deceased member or employee of a person other than a member who has been granted a loan by the society whether such a society is or is not a member of the society; or (h) between the society and a creditor of the society such dispute shall be referred to the Registrar for decision, and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. (2) for the purpose of sub-section (1), the following shall also be deemed to be disputes, namely: (a) a claim by the society for any debtor demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not; (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not; (c) any dispute arising in connection with the election of the Board of Manage-,ment or any officer of the Society. Explanation: A dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election. (3) No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Registrar unless it is referred to him within one month from the date of the election. (4) If any question arises whether a dispute referred to the Registrar under this section is a dispute as defined in clause (1) of S.2, the decision thereon of the Registrar shall be final." 7. It would be seen from the provision that a dispute arising in connection with the election of the Board of Management or an officer of the Society will come within the term dispute. Learned counsel for the respondents invited my attention to the decision of Justice Mathew in Vasu Pillai v. Registrar of Co-operatives Societies (1965 KLT. 447) where it was held that the dispute relating to the election of a Director of a Co-operative Society is one touching the business of the Society within the meaning of S.60 of the Act. Hence the Registrar has jurisdiction to entertain the petition filed by the defeated candidate for setting aside the election of the Director. A Division Bench ruling Narayanan Nambiar v. Dy Registrar of Co-operative Societies (1973 KLT. 213) was also brought to my notice, where it is said that the disputes in connection with the election can be raised only after an election. A Division Bench ruling Narayanan Nambiar v. Dy Registrar of Co-operative Societies (1973 KLT. 213) was also brought to my notice, where it is said that the disputes in connection with the election can be raised only after an election. But as Justice George Vadakkel said in Mavelikkara Co operative Housing Society Ltd. v. Alleppey Dist. Co-operative Bank (1974 KLT. 783) when the question raised is fundamental and is about the jurisdiction of the Returning Officer to fix a date for poll and conduct the election in violation of R.35(3)(b), the question of asking the petitioner to go for the remedy provided in the Act would not be quite right. Such cases would be fit for exercise of jurisdiction under Art.226 of the Constitution; to. raise an election dispute under S 69 would not be adequate and efficacious remedy when the validity of the voters' list is challenged. As the Supreme Court observed in Chief Commissioner of Ajmer v. Radhey Sham Dani (AIR 1957 S.C. 304), it is the essence of the election that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinise whether the persons enrolled as electors possessed the requisite qualifications. Otherwise the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged. Proper electoral roll is a fundamental factor before the election is actually held and if the complaint is that no such roll has been prepared in accordance with the Rules, this court can certainly step in even before the election is actually held and prevent the election being held on the imperfect electoral rolls exercising its jurisdiction under Art.226 of the Constitution. 8. The next question that has to be resolved is whether the electoral roll prepared in the matter is a proper one. The complaint of the petitioner is that R.35 (3) (b) of the Rules had not been complied with in the matter of preparation of the Voters' List, which the 1st respondent failed to see. He states that full description and details of the delegates of the members have to be indicated. R.35 (3) (b) is as follows: "35. The complaint of the petitioner is that R.35 (3) (b) of the Rules had not been complied with in the matter of preparation of the Voters' List, which the 1st respondent failed to see. He states that full description and details of the delegates of the members have to be indicated. R.35 (3) (b) is as follows: "35. The election of the member of the committee of a society shall be conducted in the following manner (b) The Committee in office shall prepare a list of members qualified to vote at the election in accordance with the provision of the Act, these rules and byelaws as stood on a date 30 days prior to the date fixed for the poll and supply, the same, to the Returning Officer. The Returning Officer shall publish copies of the list by affixing them to the Notice Board at the Head Office of the society and its branches, if any, not less than fifteen.- days prior to the date fixed for election inviting objections, if any, in the matter, within three days of publication. The list shall specify the admission number, name of the member, name of the Father or Husband and the address of such member. After considering the objections if any the Returning officer shall publish a final list of eligible voters on the not Notice Board of the Society and in its branches, if any, ess than ten days prior to the date fixed for the poll. A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee. But in no case, the fees so charged for the list shall exceed Rs. 5 per day." What the Committee has to prepare is the list of members qualified to vote at election in accordance with the provisions of the Act. The members in the present case are really the Societies concerned. The delegate of each society represents the society which as affiliated Society is a member of the Bank. Consequently the Society is the member and voter; the vote is exercised no doubt through the delegates. I do not think that the petitioner is right in contending that the committee will have to prepare, the list of the delegates representing the societies for complying with R.35 (3) (d). Consequently the Society is the member and voter; the vote is exercised no doubt through the delegates. I do not think that the petitioner is right in contending that the committee will have to prepare, the list of the delegates representing the societies for complying with R.35 (3) (d). In this instant case the list of the member societies has been published in accordance with Rule. Disqualification of a Delegate, no doubt, can be raised at the time of scrutiny of the nomination. As per Rules there is no requirement of publication the list containing the names of the delegates. R.45 certainly provides for the disqualifications of a member of the Society to be a delegate of another society. Such a disqualification can certainly be raised at the time of the scrutiny of the nomination. Therefore, I do not consider that any interference is called for by this court at this stage. The O.P. is dismissed, but in the circumstances without costs. Dismissed.