VALSARAJ v. JOINT REGISTRAR — 1984 DIGILAW 84 (KER)

Judgment :- 1. The question which arises for consideration in this Original Petition relates to the electoral roll which has to be the basis for the election of members to the Board of Directors of a Co-operative Society, in a case where the election is postponed due to circumstances which are out of the ordinary and attributable to extraneous factors. It is admitted that the usual rule is that the electoral roll shall be the one which includes the names of such persons as are members of the Society thirty days prior to the date of the notice convening the general body of members of the Society for election of members of the Committee. It is also not in dispute that such electrol roll shall be finally published as on thirty days prior to the date on which the election is to be conducted. The only controversy is that, if after the electoral process begins and before actual poll, such process is interrupted and the poll is postponed to a subsequent date, the electoral roll shall be revised so as to enable the newly enrolled members also to exercise their franchise at the poll. In other words, the question is whether once the electoral process is interrupted before actual poll, the entire process should start over again, or whether it shall be continued from the stage at which it had to be left off. 2. The bare facts which are necessary for appreciating the controversy in the present case are the following: The term of office of the erstwhile Board of Directors of the Purameri Service Co-operative Bank Ltd., was to expire on 30-6-1983. On 21-4-1983 the Board of Directors passed a resolution as contemplated in R.35(1) of the Kerala Co-operative Societies Rules (hereinafter referred to as the rules). The date of polling was fixed as 26-6-1983, and a further resolution was adopted convening a meeting of the general body of the Society to be held on the above date and at the above premises for the purpose of election. On receipt of a copy of the resolutions, the first respondent appointed the third respondent as Returning Officer under Ext. P-2. The Board of Directors had enrolled 1699 members at its meeting held on 21-4-1983 by a majority decision, postponing consideration in respect of over 600 others to the next meeting of the Board. On receipt of a copy of the resolutions, the first respondent appointed the third respondent as Returning Officer under Ext. P-2. The Board of Directors had enrolled 1699 members at its meeting held on 21-4-1983 by a majority decision, postponing consideration in respect of over 600 others to the next meeting of the Board. That meeting was held only on 2-5-1983, at which, one of the Directors in the majority having changed sides, more than 2000 members were enrolled by the group which was in the minority on the former occasion. The number of members enrolled after 21-4-1983 is about 4000. 3. By Ext. P3, the Commissioner, Co-operation decided that "in the circumstances prevailing in the State you are advised to postpone for three months the election due to be held in the Co-operative Institutions throughout the State". This communication was addressed to the Registrar of Co-operative Societies, who, dutifully issued directions for postponement of elections in all Co-operative Societies. The postponement of election suited the Directors then holding Office, but did not suit the other group. O. P. No. 4962 of 1983 was filed by the Vice President of the Society with which we are concerned challenging Ext. P3 order; and by Ext. P4 judgment, this court directed that the elections to the Board of Directors of the Society had to be expedited. In the meantime, an Administrator had been appointed to be in charge of the affairs of the Society. 4. On 2-11-1983 the Administrator of the Bank passed a resolution fixing the date of election to the Committee as 22-1-1984. Pursuant to the resolution dated 2-11-1983, the first respondent appointed the third respondent once again as Returning Officer as per order dated 10-11-1983. A fresh list of voters was prepared by the Administrator, including 1699 members enrolled upto 24-6-1983, 2239 members enrolled on 2-5-1983 and 45 members enrolled upto 2-11-1983. Even though there is some controversy as to whether any electoral roll was prepared for the election which was notified to be conducted on 26-6-1983, it is fairly clear that a list of voters had been prepared by the Secretary of the Society, but the same could not be approved by ail the members of the Board of Directors, nor was it handed over to the Returning Officer before the elections were postponed by reason of Ext. P3; and the Administrator took charge soon thereafter. P3; and the Administrator took charge soon thereafter. I have therefore to proceed on the assumption that there are two lists, one prepared for the poll on 26-6-1983 and the other prepared thirty days prior to 22-12-1983. The question for consideration is as to whether the election shall be conducted with the former or the latter as valid list of voters or whether there should be yet another list. 5. Reference was made to a decision of this court in support of the proposition that the latter list is relevant and the date which is material is the date thirty days prior to the issue of notice convening the general body for the purpose of election. This is the judgment in W. A. No. 294 of 1975. Govindan Nair C. J., categorically held therein: "We are in entire agreement with the learned judge that the relevant date from which 30 days will have to be reckoned backwards for the purpose of determining whether transfers effected during that period should be ignored or not. is the date of issue of the notice for the general body meeting. This is very clear from the specific provision in R.26 of the Rules. If there have been transfers or admissions of members on any day within 30 days prior to the date of issue of the notice for the general body meeting, such persons who have been admitted and the persons in whose favour the transfer of shares have been approved shall not have the right to membership or the right to vote at the said general body meeting or at any meeting held subsequent thereto for the perpose of election". It was further held: "It is no doubt true as has been pointed out by the learned judge in the judgment under appeal that the Returning Officer has proceeded on the basis that the intimation that he purported to issue under R.35(3) (a) is the election notice. This is clearly a mistake. But the. important fact is by the issue of what the Returning Officer called the election notice, the notice for the general body meeting as well as the notice for the election on the 22nd June 1975 as decided by the committee, also got issued on 3-5-1975. If there has been an issuance of Ext. This is clearly a mistake. But the. important fact is by the issue of what the Returning Officer called the election notice, the notice for the general body meeting as well as the notice for the election on the 22nd June 1975 as decided by the committee, also got issued on 3-5-1975. If there has been an issuance of Ext. P2 notice for the annual general body meeting there is no error in excluding the members including the petitioner who had been admitted within 30 days prior the date 3-5-1975 either by admitting them or by transferring shares in whose favour". 6. What emanates from this decision is that there must be a decision to convene general body meeting, and notice of such general body meeting as is decided upon under R.35 must actually have been issued. It is also further clear that this notice is not the one issued by the Returning Officer relating to the election to be conducted on the same day; it must be separate notice issued by the Society relating to the convening of the general body, of course for the same purpose. 7. Mr. Poti appearing for some of the respondents submits that it is not sufficient that there has been a decision of the Board of Directors convening a meeting at which it was decided that the meeting of the general body shall be convened on a particular date. It must further appear from the records that there was a notice issued in compliance with the resolution of the Board of Directors, to convene a meeting of the general body for the purpose of the election. It is submitted that only in the event of such notice having been issued that the bar under R.26 of the Kerala Co-operative Societies Rules can be operative. 8. Mr. Appa Nair, counsel for the petitioner refers to the decision in O.P. No. 3187 of 1980, wherein the same question was considered. It was held by Bhaskaran J., as he then was, that "The admitted case is that these resolutions were put on the notice Board of the Bank, The submission made by Shri V. P. Mohan Kumar, the counsel for the petitioner, is that the passing of the resolutions contained in Ext. P1 and the publication thereof in accordance with the guideline given in Ext. P1 and the publication thereof in accordance with the guideline given in Ext. P-2 circular constitutes issue of notice for the general body meeting, and, therefore, the Society could not have, in law, admitted members after 30-6-1980 in terms of the provisions of R.26 of the Rules; he also submitted that the voters' list requires to be subjected to scrutiny to weed out the names of persons who were not entitled to be members of the Society or to vote at the election". After considering the effect of the judgment in W.A. No. 294 of 1975 referred to above, His Lordship concluded: "On a careful consideration of the relevant provisions contained in R.35, particularly sub-rules (1) and (3) (a) thereof, I am convinced that there is absolutely no legal basis for the argument that the intimation regarding the details of the election sent by the Returning Officer is to be deemed to be the notice for the purpose of R.26 of the Rules. It is for the committee, in terms of R.35(1) to fix the date of the election, not for the Returning Officer, who only conveys the intimation regarding the details of the election to the members, in accordance with R.35(3). I find support for this view I am inclined to take in the decision of the Division Bench of this Court in W.A. No. 294 of 1975". 9. Eventhough a very detailed counter affidavit has been filed by the fourth respondent, and elaborate arguments were addressed by Shri Poti in support of his contentions it is not disclosed that notice was issued by the Administrator calling a meeting of the general body of the members of the society pursuant to his resolution dated 2-11-1983. But it is evident from Ext. P.11 produced along with C.M.P. No. 1058 of 1984 that the Secretary of the Bank had issued a notice on 22-12-1983 convening a general body meeting of the members of the Bank on 22-1-1984 for electing new directors. This date may become material only if I hold that once an electoral process is interrupted prior to the poll, the entire process should be started afresh. Otherwise it is as if the election was decided upon, but no notice under R.35(1) of the Rules read with S.29 of the Act was issued and therefore the bar of R.26 may not apply. Otherwise it is as if the election was decided upon, but no notice under R.35(1) of the Rules read with S.29 of the Act was issued and therefore the bar of R.26 may not apply. The effect of R.26 and its interplay with R.35(3)(b) of the Cooperative Societies Rules has been considered in two decisions of this Court. In the decision reported in Rajachandran Pillai v. Gireesan (1983 KLT. 627. Bhaskaran, J. as he then was, held that: "Requirements in R.26 are mandatory and inclusion of persons in violation of the provisions of R.26, and allowing such persons to exercise the right of vote vitiated he election held on the basis of such list of members". 10. The contention that in terms of the provisions contained in R.26 and 35(3)(b), all persons admitted to the membership of the Bank prior to 30days of the date fixed for the poll would be entitled to cast their votes was turned down in that decision. In the decision reported in 1984 KLT 488:ILR.1984(1) Kerala 42, the same learned judge reiterated that: "The legal position in regard to the rights of persons admitted to membership within 30 days prior to the date of issue of notice for the general meeting does rot admit of any doubt, as in terms of R.26, no person could be admitted to membership during the prohibited period, and any person who is purported to have been so admitted shall not have the right to claim membership or the right to vote at the general meeting". It was further held that: "There is absolutely no legal basis for the arguments that because R.35(3)(b requires the committee in office to prepare the list of members qualified to vote at the general meeting as it stood on a day 30 days prior to the date fixed for the poll, the society would be at liberty to enroll members up to that date, and, therefore, those who were enrolled within 30 days prior to the date of issue of the notice for the general meeting also would be entitled to get themselves included in the list of members to be prepared under R.35(3)(b) and also to exercise the right to vote". 11. 11. From the above decisions and the two unreported decisions referred to earlier, it is absolutely clear that the only persons entitled and eligible to vote at an election are those persons who are on the electoral rolls 30 days prior to the date of issue of the notice for the general body meeting convened for the purpose of the election of the Board of Directors. S.29 of the Act makes it obligatory that the election of the members of the committee shall be conducted only in the general body meeting. This provision read along with R.35(1) of the Rules makes it obligatory for the committee to issue a notice fixing the date on which general body meeting will be held for the conduct of election. This notice has to be issued by the Committee itself represented by the Secretary. The intimation contemplated under sub-rule (3) of the above Rule will not do duty for convening of a general body meeting for the purpose of election of the members of the Committee as provided in S.29 of the Co-operative Societies Act read with R.35(1) of the Rules. When the Society, pursuant to its obligations under the above provisions, issues a notice convening a general body meeting for the above purpose, the provisions contained in R.26 relating to the prohibition of enrolment of members and the restriction relating to the right to membership and right to vote become operative. The intention of these provisions is to ensure that the electorate is not manipulated within a reasonable period prior to the decision to conduct the election. In other words, the object of these provisions is to ensure that the electorate remains the same as it was at the time when the election was decided upon or the constituency was called to the polls. 12. The entire purpose of these provisions can still perhaps be defeated by manipulating the date of the issue of the notice obligatoraly necessary under S.29 of the Act read with R.35 (1) of the Rules. In the present case, the resolution under R.35 (1) (a) was adopted by the Society on 21-4-1983 fixing the date of poll on 26-6-1983. But no notice was admittedly issued upto 6-5-1983 when the Government issued a notification postponing all elections or even thereafter. After the Administrator took charge, he adopted Ext. P-11 resolution under R.35(1) of the Rules. Of course Ext. But no notice was admittedly issued upto 6-5-1983 when the Government issued a notification postponing all elections or even thereafter. After the Administrator took charge, he adopted Ext. P-11 resolution under R.35(1) of the Rules. Of course Ext. P-11 notice was issued pursuant thereto on 22-12-1983. But the question still remains whether that notice pursuant to a decision to begin the electoral process afresh would be operative since it begs the question, should there be fresh proceedings when an election is interrupted? 13. The two questions which arise in this case on the above facts are (1) when once an election which is decided upon by a resolution of the Committee of a Society is postponed due to circumstances beyond its control, is it obligatory for the Society to conduct the election all over again with a fresh resolution under R.35(1), or can the proceedings be continued from the stage at which they were left off ? and (2) what shall be the date, with reference to which the prohibition contained in R.26 of the Kerala Cooperative Societies Rules should be operative. 14. As far as the first question is concerned, there are two decisions of this Court, the former by Vadakkel, J. reported in Mavelikara Co-op. Housing Society v. Alleppey Dist. Co-op. Bank (1974 KLT. 783) and the latter by a Division Bench reported in Abubaker v. Kunhavaran (1983 KLT. 995). In the former case the poll had to be adjourned because of an order of stay issued by the Munsiff Court, Alleppey. Vadakkel, J. held that there being no provision in the Act or the Rules, under which an election which did not take place on the date fixed for the same can be continued from the stage at which it was stopped, the entire proceedings had to be started all over again. The Division Bench dealt with a slightly different situation where, due to interruptions after commencement of the poll, the poll had to be adjourned by the Returning Officer in exercise of his powers under R.33(3)(p). The Division Bench dealt with a slightly different situation where, due to interruptions after commencement of the poll, the poll had to be adjourned by the Returning Officer in exercise of his powers under R.33(3)(p). The Division Bench held that, that the polling which was stopped by the Returning Officer had to be continued from the stage at which it was left off, observing that the conclusion of Vadakkel, J. that: "The Returning Officer had no power to postpone the poll and fix another date for the polling for any reason whatsoever." was not correct and does not apply to all situations. Counsel for the petitioner submits that this latter Division Bench decision indicates the principle which is to be adopted in all cases where the elections could not be conducted due to extraneous circumstances or factors which were beyond the control of the Board of Directors or the Returning Officer. Counsel for the petitioner seems to be right in his submission that if it were otherwise, any manipulation by extraneous agencies can effectively subvert the internal democracy of co-operative institutions by interference in the due course of election of these institutions of utmost importance in our constitutional system. I am therefore, inclined to hold that the electoral process once interrupted has to be continued from the stage at which it was left off. This alone will be an effective disincentive to manipulation of the electoral process. 15. The 2nd question is a more ticklish one, one of greater consequences. Counsel for the petitioner submits that even though no notice was issued by the Board of Directors convening a general body meeting of the members of the society pursuant to Ext. P1 resolution, the prohibition contained in R.26 has to be made applicable with reference to 26-5-1983. The effect of this submission is that members who were enrolled before 26-4-1983 alone would be entitled to vote. This date is adopted obviously with a purpose, because, it is revealed from the counter affidavit of the additional respondents as also those of the 2nd and 3rd respondents that 1699 persons were enrolled as members of the Society before 26-4-1983, and 2399 members who were allegedly enrolled on 2-5-1983 by the other group can be excluded. This date is adopted obviously with a purpose, because, it is revealed from the counter affidavit of the additional respondents as also those of the 2nd and 3rd respondents that 1699 persons were enrolled as members of the Society before 26-4-1983, and 2399 members who were allegedly enrolled on 2-5-1983 by the other group can be excluded. The additional respondents require the postponement of the crucial date with reference to which prohibition will be operative to a date later than 2-5-1983, since that suits them better as they had enrolled more than sufficient members to offset any imbalance created by the enrollments on 21-4-1983. Mr. Poti also contends that unless the new members are brought on record, at least on a representative basis, a decision may not be taken affecting their right to vote at the election. According to him, since the election as per Exts. P1 and P2 did not take place the electoral roll should contain the names of all persons on the rolls as on 30 days prior to the poll as enjoined by R.35(3)(b) of the Rules. 16. The question therefore is as to what shall be the constituency which shall elect the Board of Directors pursuant to Ext. P1 resolution adopted on 21-4-1983 and which process has to be continued in view of my conclusion on the first point. I am firmly of the opinion that the electorate must be that which was and which alone could have exercised their franchise at the election which would have been conducted on 26-6-1983, had it not been interrupted by the intervention by Ext. P3 order. The intention behind the prohibition contained in R.26 of the Co-operative Societies Rules can only be that there must be some amount of certainty about the voters who constitute the electorate for the election, once it is contemplated. The date of issue of the notice is prescribed as a date for ensuring such certainty so that the prohibition will be operative for a period of 30 days prior to the issue of the notice. But in a case where the notice as contemplated in S.29 of the Act read with R.35(1) of the Rules is not issued, or the issue there of is deliberately and unduly delayed, the certainty relating to the electorate which is the very basis of R.26 of the Rules itself will be completely frustrated. But in a case where the notice as contemplated in S.29 of the Act read with R.35(1) of the Rules is not issued, or the issue there of is deliberately and unduly delayed, the certainty relating to the electorate which is the very basis of R.26 of the Rules itself will be completely frustrated. Particularly in a case where even this date can be manipulated, we have to adopt a more certain date for the purpose of ensuring that the electorate which is called to the polls is beyond manipulation. That can be ensured only by understanding the prohibition contained in R.26 of the Cooperative Societies Rules to mean that the electorate must be as on a date reasonably prior to the date on which the election was decided upon by passing a resolution under R.35(1) of the Co-operative Societies Rules. This has got the merit of avoiding manipulation one way or the other of the size of the electorate by enrolment of members after the meeting of the Board of Directors is convened to decide upon election and before the notice in consequence thereof is issued. On the second point, in the peculiar facts of this case, T therefore hold that the election has to be conducted with the electoral roll of members enrolled upto and inclusive of the date of issue of notice for the meeting at which Ext. P1 resolution was adopted. In this view of the matter, I do not think that the new voters are either necessary or proper parties in these proceedings. 17. In this view, I allow this Original Petition and direct that the respondents 2 and 3 will arrange to conduct the election to the Board of Directors of Purameri Service Co-operative Bank Ltd., No. F.1271, with the electoral roll consisting of members enrolled upto and inclusive of the date of issue of the notice for the meeting held on 21-4-1983 excluding all members who were enrolled subsequent to that date. The Returning Officer who was appointed pursuant to Ext. P-1 and who has been re-appointed pursuant to Ext. P11 resolution will fix a date for the poll in compliance with the provisions of R.35 of the Co-operative Societies Rules publish the electoral roll as directed above under R.35(3)(b), send intimation to all such members as are on the rolls as indicated above, and conduct the election accordingly. P-1 and who has been re-appointed pursuant to Ext. P11 resolution will fix a date for the poll in compliance with the provisions of R.35 of the Co-operative Societies Rules publish the electoral roll as directed above under R.35(3)(b), send intimation to all such members as are on the rolls as indicated above, and conduct the election accordingly. The Original Petition is allowed to the above extent. There will be no order as to costs. In view of some factual mistakes pointed out by counsel for the additional respondents, I re-posted the case in Chambers on 15-3-1984 to be spoken to and the judgment was delivered with modifications on that date after hearing counsel on both sides.