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1987 DIGILAW 400 (KER)

KURIEN v. JOINT REGISTRAR

1987-08-13

U.L.BHAT

body1987
Judgment :- 1. Petitioner is the President of the second respondent Kottayam District Co-operative Bank Limited. Respondents 3 to 5 are members of the Board of Directors of the Bank of whom sixth respondent is the Vice President. Petitioner was nominated by the Registrar to the Board of Directors under S.31 of the Kerala Co-operative Societies Act, (for short'the Act'), as per Ext. P1 dated 5-12-1986. At the meeting of the Board of Directors held on 20-3-1987 petitioner was elected President of the Bank Third respondent and others submitted representation before the first respondent, Joint Registrar of Co-operative Societies, alleging that the election of the petitioner is illegal. According to them, being a nominated member under bye-law 26 he is not eligible to be an office bearer. They also challenged the legality of the meeting since seven days clear notice was not given to the members as required in the bye-laws. The first respondent after a show cause notice considered the explanation given by the petitioner and others and purported to rescind the decision of the Board of Directors electing the petitioner as President under Ext. P5 order. The legality of this order is challenged under Art.226 of the Constitution of India. 2. Counter-affidavit filed by the first respondent indicates that he passed Ext. P5 order in purported exercise of the power conferred on him under R.176 of the Co-operative Societies Rules. The rule states that notwithstanding anything contained in the bye-laws of a registered society, it shall be competent for the Registrar to rescind any resolution of any meeting of any society or of the committee of any society, if it appears to him that such resolution is ultra vires of the objects of the society, or is against the provisions of the Act, Rules, bye-laws or of any direction or instruction issued by the department, or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society. There is no dispute that the first respondent has the powers of the Registrar. That being so, under R.176 of the Rules he is competent to rescind any resolution passed by a meeting of the Board of Directors if the resolution is contrary to the bye-laws or the provisions of the Act or the Rules. The stand taken in Ext. There is no dispute that the first respondent has the powers of the Registrar. That being so, under R.176 of the Rules he is competent to rescind any resolution passed by a meeting of the Board of Directors if the resolution is contrary to the bye-laws or the provisions of the Act or the Rules. The stand taken in Ext. P5 is that the election of the petitioner as President is contrary to bye-law No. 26(2). This bye-law states that a nominated member shall not be elected President or Vice President. That being so, according to the first respondent, petitioner, who is a nominated member, cannot be elected President. 3. The main question which arises for consideration is whether the election of a member of the committee as President can be rescinded under R.176 of the Rules. R.176 of the Rules empowers the Registrar, inter alia, to rescind any resolution, of any committee of the society. The Board of Directors is the committee of the second respondent Bank. Petitioner would contend that proceedings of election cannot be treated as resolution and he was not elected by any resolution. His contention is rebutted by learned Government Pleader and learned counsel for the third respondent. 4. The election of the President and other office bearers of a society is dealt with in R.43 of the Rules. This rule applies to a case of regular election of office bearers as also where a vacancy is to be filled up. The rule requires the meeting of the committee to be presided over by any member, who is not a candidate for the election, chosen by the committee for the purpose. He h called Presiding Officer. The nomination papers shall be presented to the Presiding Officer at the meeting. The Presiding Officer shall decide the objections, if any, that may be made at the time, to any nomination after making such summary enquiry as be thinks necessary and announce the name or names of the eligible candidate or candidates. Where there is not more than one valid nomination the Presiding Officer shall declare the candidate, in respect of whom the nomination paper has been received, duly elected to such office. Where there is more than one nomination, the Presiding Officer shall forthwith arrange for taking a poll by providing the ballot papers and ballot box. Where there is not more than one valid nomination the Presiding Officer shall declare the candidate, in respect of whom the nomination paper has been received, duly elected to such office. Where there is more than one nomination, the Presiding Officer shall forthwith arrange for taking a poll by providing the ballot papers and ballot box. As soon as all the members have recorded their votes, the Presiding Officer shall open the ballot box in the presence of the members, count the votes and announce the results of election with the number of votes secured by each. The proceedings of the meeting with the results of the election shall be recorded in the minutes book of the society and attested by the Presiding Officer. Broadly speaking this is the procedure indicated in R.43. 5. From what is indicated in R.43 of the Rules, it is apparent that the election of an office bearer of the society is not by a resolution passed by the committee. A resolution has to be placed before the committee, moved by one member and seconded by another member. If it is opposed the same has to be discussed and vote taken. If the resolution is passed that should form part of the minutes as a resolution approved by the committee. The case of election stands on an entirely different footing. The nomination paper has to be submitted by the candidates. The Presiding Officer has to scrutinise and determine the validity of the nomination paper. If there is only one nomination, the candidate concerned must be declared elected. If there is a contest, polling has to take place, votes counted and results declared. The entire proceedings have to be recorded in the minutes book. Proceedings are not to be recorded in the minutes book in the form of resolution. Proceedings should reflect the procedure adopted and the steps taken in the course of the election. That cannot be treated as a resolution passed by the committee. In these circumstances, I am satisfied that the proceedings of the meeting of the committee where an office bearer is elected is not a resolution, which is capable of being rescinded by the Registrar under R.176 of the Rules. The purported rescinding of the resolution is an act beyond the jurisdiction of the first respondent. 6. In these circumstances, I am satisfied that the proceedings of the meeting of the committee where an office bearer is elected is not a resolution, which is capable of being rescinded by the Registrar under R.176 of the Rules. The purported rescinding of the resolution is an act beyond the jurisdiction of the first respondent. 6. It is not as if illegality, if any, in the election of an office bearer is not capable of being rectified. S.69 of the Act deals with disputes to be referred to the Registrar. Sub-section (1) mentions the disputes which could be referred to the Registrar for decision. Sub-section (2)(a) states that for the purpose of sub-section (1) any dispute arising in connection with the election of the Board of Directors or any officer of any co-operative society is a dispute which could be referred to the Registrar. The normal procedure for challenging the election is by raising a dispute under S.69 of the Act. The election of an office bearer cannot be set aside by the Registrar by purporting to rescind a resolution under R.176 of the Rules. The same view has been taken by a learned single judge of this court in the decision in Thomas v. Asst. Registrar of Co-operative Societies (1983 KLT 1065), though in that decision the applicability of R.176 of the Rules was not canvassed. Ext. P5 therefore deserves to be quashed. 7. The merits of the case have also been urged before me Since the merits have to be gone into in election dispute, I do not think it proper that I should deal with the merits. 8. In the result, Ext.P5 is quashed and the original petition is allowed, but in the circumstances without costs.