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1993 DIGILAW 398 (KER)

Cherian K. Anthrayose v. Joint Registrar

1993-08-23

P.K.BALASUBRAMANYAN

body1993
Judgment :- Heard Sri.M.K. Damodaran on behalf of the petitioner, Sri.P.V. Baby on behalf of the parties who object to the general body meeting being held in three different places simultaneously, Sri.M.P. Abraham on behalf of the second respondent and the learned Govt. Pleader on behalf of the first respondent. 2. The prayer in the Original Petition is for the issue of a direction to the first respondent to appoint a Returning Officer for the conduct of election to the 2nd respondent/bank on 26-9-1993. The original resolution had been passed proposing to hold the general body meeting in three different centres, apparently to make it more convenient to the members from each area to exercise their franchise in centres that are nearer to their locality. This was being objected to on the ground that a general body meeting could be held only in one place and could not be split up as envisaged by the original resolution passed by the managing committee. It appears that the managing committee passed a resolution to hold the meeting at three different centres simultaneously in view of the fact that it had been done so earlier on the footing that since it was an election it could be arranged in three different centres where the members could more effectively exercise their franchise. Whatever that be objection having been taken the managing committee of the bank has passed a resolution dated 19-8-1993 - subsequent to the filing of this Original Petition-resolving to hold the election meeting in the premises of the Head Office of the Bank between 8 A.M. and 5 P.M. on 26-9-1993. The said resolution has been produced along with C.M.P.No.20632 of 1993 in O.P.No.10883 of 1993. The petitioner has also pointed out that after the passing of the resolution the same has been communicated to the Joint Registrar of Co-operative Societies, Ernakulam with a request to him to appoint a Returning Officer for that election. Ext. Pll is that request. The said resolution has been produced along with C.M.P.No.20632 of 1993 in O.P.No.10883 of 1993. The petitioner has also pointed out that after the passing of the resolution the same has been communicated to the Joint Registrar of Co-operative Societies, Ernakulam with a request to him to appoint a Returning Officer for that election. Ext. Pll is that request. The learned counsel for the petitioner submits that in view of the fact that the objection regarding the holding of the election meeting in three different centres has now been accepted and a fresh resolution has been passed to hold the meeting only in one centre there is no impediment in the way of the joint Registrar of Co-operative Societies for appointing a Returning Officer for holding the election as requested by the managing committee of the second respondent bank. The learned Govt. Pleader submits that the Returning Officer could not be appointed in view of the doubt regarding the legal position as to whether the meeting could be held simultaneously in three different centres. According to the learned Govt. Pleader now that a fresh resolution has been passed to hold the meeting in one centre there cannot be any objection on that score for appointing a Returning Officer. But the learned Govt. Pleader submits that the fresh resolution Ext.P10 is not in accordance with R.35(1) of the Co-operative Societies Rules and that there is no sufficient time for completing the formalities as envisaged by that Rule. It is also pointed out that the existence of the gap of 60 days in between the resolution and the holding of the election has been held to be mandatory by this court (vide T.K. Sugathan and another v. Joint Registrar, 1993 (1) KLT927 =1993 (1) KLJ 932). 3. Sri.P.V. Baby, appearing for some of the members who are the petitioners in O.P.No.10552 of 1993 also supports the learned Govt. Pleader in the submission that there is no sufficient time to hold the election on 26-9-1993 since it is mandatory that there should be 60 days gap between the resolution and the date of polling. 4. 3. Sri.P.V. Baby, appearing for some of the members who are the petitioners in O.P.No.10552 of 1993 also supports the learned Govt. Pleader in the submission that there is no sufficient time to hold the election on 26-9-1993 since it is mandatory that there should be 60 days gap between the resolution and the date of polling. 4. It has been held by His Lordship Justice T.L. Viswanatha Iyer in the decision reported inA.K. G. Memorial Co-operative P.D. Society Ltd, v. Joint Registrar (1992 (1) KLT 822) that the prescription of time of 60 days in R.35(1) is not mandatory and that what is mandatory is the passing of a resolution. It is submitted that this question is pending consideration before a Division Bench of this court. It is also brought to my notice that His Lordship Justice Guttal has taken the view that the prescription of 60 days is mandatory and that therefore there cannot be a direction to appoint a Returning Officer for holding the election on 26-9-1993 as requested by the managing committee. 5. I do not think that it is necessary to resolve this controversy in this proceeding. In my view all that has been done by Ext.P10 resolution dt.19-8-1993 is merely to amend the resolution dt. 24-7-1993 passed by the managing committee fixing the election to be held on 26-9-1993. As I read the situation it appears to me that the resolution for holding the election on 26-9-1993 has been passed on 24-7-1993 itself and all that has been done by Ext.P5 resolution passed on 19-8-1993 is to amend the earlier resolution. It is not disputed before me that if the subsequent resolution dt.19-8-1993 is considered merely as an amendment of the resolution dt.24-7-1993 even the mandatory requirement of the existence of 60 days between the date of the resolution and the date of election is satisfied in this case. 6. It was argued at this stage that the managing committee has no power to amend an earlier resolution and all that it can do is to pass a fresh resolution. I am not in a position to agree with this argument. 6. It was argued at this stage that the managing committee has no power to amend an earlier resolution and all that it can do is to pass a fresh resolution. I am not in a position to agree with this argument. If the managing committee has got the power to pass a fresh resolution altering everything relating to the holding of an election decided upon on an earlier occasion I do not see any justification for holding that it cannot pass a resolution to partly modify the earlier resolution so as to make it in consonance with law or to cure any possible defect that might have crept in, in that resolution. Suppose the managing committee passes a resolution to hold the election on 31st June of a particular year. Obviously there is a mistake in that resolution in that the month of June has only 30 days. Cannot the managing committee meet again and correct the date as 30th June as the date for holding the election? I my view the managing committee certainly has the power to correct the error that has crept in in the earlier resolution. This according to me would not make the subsequent resolution a fresh resolution but would make it only a part of the original resolution. I am therefore not in a position to accept the contention raised by the learned Govt Pleader and Sri.P.V. Baby on behalf of some of the members that the second resolution marked as Ext.P10 can be considered only as a fresh resolution and the period of 60 days must be calculated purely on the basis of that resolution. 7. The resolution correcting the earlier mistake was passed on 19-8-1993. There are clear 37 days available between the date of the second resolution (amending resolution) and the date fixed for election. I think that this period is sufficient for completing the process of election since I am inclined to agree with the view expressed by His Lordship Justice T.L. Viswanatha Iyer that the period of 60 days in between the resolution and the date of election is not mandatory in that sense. In the result I allow this Original Petition and direct the first respondent to appoint a Returning Officer for holding the election to the 2nd respondent bank on the basis of the resolution dt. 24-7-1993 as amended by the resolution dt.19-8-1993. In the result I allow this Original Petition and direct the first respondent to appoint a Returning Officer for holding the election to the 2nd respondent bank on the basis of the resolution dt. 24-7-1993 as amended by the resolution dt.19-8-1993. The Returning Officer would be appointed by the first respondent within three days of receipt of a copy of this judgment. In the circumstances of the case I make no order as to costs.