K. N. Gangadharan Nair v. George O Thettayil — 1993 DIGILAW 486 (KER)

JUDGMENT K. Sreedharan, J. 1. Respondents 3 to 8 in O. P. 8768 of 1993 are the appellants. They were members of the Board of Directors of second respondent, the Vengoor Service Cooperative Society Ltd. No, 2793, Vengoor, for two consecutive terms. They filed nominations for contesting the election that was to be held on 18-7-1993, which was the third term. Their entitlement for contesting the election on the ground of the bar created by bye law No. 32 of the bye laws of the Society was questioned before the Returning Officer. Returning Officer rejected those objections and accepted nomination filed by respondents 3 to 8 in the Original Petition who are the appellants herein. Writ petitioner challenged this action of the Returning Officer in O. P. 8768 of 1993. By judgment dated 16-7-1993, the learned Single Judge allowed the writ petition declared and that respondents 3 to 8 (appellants herein), except 7th respondent, are not entitled to contest the election in view of the bar created by bye law 32. Appellants challenge this decision rendered by the learned Single Judge 2. By virtue of the decision of the learned Single Judge, appellants could not contest the election which was held on 18-7-1993. In that election, among other candidates who contested, additional respondents 5 to 12, impleaded in this appeal, were declared elected. They were impleaded in this appeal by order dated 20-7-1993 in C. M. P. 2313 of 1993. By order on C. M. P. 2325 of 1993 dated 20-7-1993, we restrained persons who were elected to the Managing Committee of the Vengoor Service Cooperative Society Ltd. No. 2793 from assuming office of the Managing Committee until further orders. The Secretary of the society was also restrained from allowing the newly elected office - bearers from assuming office. By virtue of this order, the Society is now managed by an Administrator. 3. The short question that arises for consideration is whether the learned Single Judge was justified in ordering the rejection of the nominations filed by the appellants on account of the prohibition contained in bye law 32 of the bye laws of the Society. The said provision is to the effect that a member of the Society for two consecutive terms is not entitled to contest election unless he obtains special sanction from the Deputy Registrar to stand for election. The said provision is to the effect that a member of the Society for two consecutive terms is not entitled to contest election unless he obtains special sanction from the Deputy Registrar to stand for election. It is the common case that appellants were members of the Committee of the Society for two consecutive terms. So, if bye law 32 is to be given its full effect, they should have obtained previous sanction from the Deputy Registrar of Cooperative Societies. It is true that appellants did not get the previous sanction from the Deputy Registrar of Cooperative Society for contesting the election which was to be held on 18-7-1993. Instead, they obtained the previous sanction from the Joint Registrar of Cooperative Society, who was having jurisdiction over the area, for contesting the election. Learned single Judge took the view that the sanction obtained by the appellants from the Joint Registrar of Cooperative Society is not in compliance with the provisions contained in bye law 32 of the Society. Consequently it was held that the Returning Officer was not justified in accepting the nomination papers filed by the appellants. 4. R.44(1)(m) of the Kerala Cooperative Societies Rules hereinafter referred to as "the Rules", prior to its deletion, read : "44 (1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he: xx xx xx xx xx xx (m) has been a member of the Committee for two consecutive terms (whether for the full term of each Committee or only for part of the terms of both or any one of them) and a period of two years has not elapsed from the date of expiry of the latter of such term, unless he obtains previous exemption from the Registrar to stand for election". This provision was in the statute book right from the date the Rules were published in the Gazette dated 14-7-1969. Bye laws of a Cooperative Society, as per R.5, should not be contrary to the E provisions of the Cooperative Societies Act and the Rules framed thereunder. So, when the bye laws of second respondent - Cooperative Society were framed, the provision contained in R.44(1)(m) was incorporated as bye law 32. R.44(1)(m) was omitted by SRO. 16/81- published in Gazette dated 6-1-1981. So, when the bye laws of second respondent - Cooperative Society were framed, the provision contained in R.44(1)(m) was incorporated as bye law 32. R.44(1)(m) was omitted by SRO. 16/81- published in Gazette dated 6-1-1981. Consequently it was argued by the learned counsel representing the appellants that bye law 32 of the Society, which was in conformity with R.44(1)(m) of the Rules, must be deemed to have become ultra vires the Rules and so the bye law should not be given effect to. It is true that bye law 32 embodies the provisions of R.44(1)(m), which is not now in force. R.44 deals with disqualification of membership of the committee to a Society. The disqualifications mentioned in R.44 cannot be taken as exhaustive. Other disqualifications, which are outside the purview of R.44, can be incorporated in the bye laws of individual societies, depending on the peculiar situations in which they are placed. Viewed in this light, a society may be justified in retaining provisions similar to R.44(1) (m) in its bye laws, eventhough that clause has been omitted by notification dated 6-1-1981. Further if we are to take the view that no Society can have a provision similar to R.44(1)(m) in its bye laws after 1981, it may affect the bye laws of large number of Societies where a similar provisions is still retained. In this situation, we consider it proper not to dwell into this aspect in detail for the disposal of this Writ Appeal. 5. Bye law 32 of the bye laws of the second respondent Society envisages the previous exemption from the Deputy Registrar of the Cooperative Societies for a member of the Committee who had held office for two consecutive terms to stand for election. Admittedly appellants had been members of the Board of Directors of the second respondent Society for two consecutive terms. So, as per the bye law, they ought to have obtained previous exemption from the Deputy Registrar of Cooperative Society to stand for election. It is also common case that appellants did not obtain previous exemption from the Deputy Registrar of Cooperative Society. Instead, they secured previous exemption from the Joint Registrar of Cooperative Society, who had jurisdiction over second respondent Society. Can this be considered as proper compliance with the provisions contained in bye law 32 of the bye laws of the Society? 6. Instead, they secured previous exemption from the Joint Registrar of Cooperative Society, who had jurisdiction over second respondent Society. Can this be considered as proper compliance with the provisions contained in bye law 32 of the bye laws of the Society? 6. At the time when the bye laws were framed, Deputy Registrar of Cooperative Society of the area was having administrative control over the second respondent Society. By subsequent Government orders, that administrative control was taken away from the Deputy Registrars and have become vested in Joint Registrars of Cooperative Societies. It is not in dispute that Deputy Registrars of Cooperative Societies are not having any administrative control over Cooperative Societies. They are functioning in the audit wing of the department only. As per the existing orders of Government, no Deputy Registrar is to exercise any administrative control over any Cooperative Society and those powers, which were exercised by the Deputy Registrars earlier, have now become vested in Joint Registrar. Therefore, as on today, no Deputy Registrar of Cooperative Society is having jurisdiction to grant previous exemption to a member of the committee for two consecutive terms to stand for election. It means that if the Court is to insist on getting previous exemption from Deputy Registrar, it will be an impossible task, for there is no Deputy Registrar in the administrative side of the department to grant such sanction. In such a situation, the only course that is open is to hold that the person who has succeeded in office, whatever be the designation, must be deemed to have power to exercise the power under bye law 32. By virtue of the existing Government orders, Joint Registrar has become the successor in office to the Deputy Registrar, who exercised administrative control over the Societies previously. Therefore he should be entitled to exercise all the powers of the Deputy Registrar. As a successor in office, the Joint Registrar has got the powers of the Deputy Registrar to accord previous exemption to a member of the committee who held office for two consecutive terms to stand for election. If binding precedent in this regard is required, reference may be made to the Constitution Bench decision of the Supreme Court in Md. Maqbool v. State of J. and K ( AIR 1972 SC 963 ). If binding precedent in this regard is required, reference may be made to the Constitution Bench decision of the Supreme Court in Md. Maqbool v. State of J. and K ( AIR 1972 SC 963 ). It, therefore, follows that appellants were entitled to contest the election for the third term, since they got previous exemption from the Joint Registrar as is evidenced by his proceedings No. C. R. P. 4259/93/K. Dis. dated 23-6-1993. The result is that the learned Single Judge was not right in declaring the appellant as disqualified to contest the election. 7. Since the nomination papers of these appellants, which were accepted by the Returning Officer, were wrongly ordered to be rejected, they could not contest the election. When the rejection of the nomination is found unjustified, the election that took place on 18-7-1993 cannot be sustained. It has also to be interfered with. While exercising jurisdiction under Art.226 of the Constitution of India, as a general principle, this Court does not normally set aside an election. There may indeed be rare cases where even if the resultant election is not directly set aside, the quashing of some other anterior proceedings might result, as a matter of operation of law, in setting aside the result of the election, as we held in Pankajaksha Panicker v. Venugopalan Nair, 1993 (2) KLT 64 . The quashing of illegal rejection of the nomination should naturally revive the nominations filed by the appellants. The consequence will be, the election held without allowing them to contest cannot be sustained. In view of this legal position, the declaration of result of additional respondents 5 to 12 as elected member of the committee of the second respondent automatically falls through even without the need of setting aside their election separately. 8. Sixth appellant was a member of the Managing Committee of the second respondent Society during the previous term. That term was to expire on 26-7-1993. Being a member of the Managing Committee of the second respondent Society, she was sent as a delegate to the Central Cooperative Society. On account of her being a delegate to the Central Society, she was elected as member of the committee of that Society. That term was to expire on 26-7-1993. Being a member of the Managing Committee of the second respondent Society, she was sent as a delegate to the Central Cooperative Society. On account of her being a delegate to the Central Society, she was elected as member of the committee of that Society. If the election to the committee of the second respondent Society was held on 18-7-1993 as scheduled, she would have come out successful would have continued as a delegate to the Central Society and consequently as a member of its committee. This was prevented as a result of the decision rendered by the learned Single Judge. According to learned counsel, no decision of Court can cause harm or prejudice to a party. So, sixth appellant should be restored to the position which she held on 16-7-1993, the date on which the learned Single Judge disposed of the Original Petition. If the position is so restored, according to counsel, she would have continued in the committee of the Central Society on the date of election, namely 18-7-1993. It is the further argument of the learned counsel that in case the rejection of the nomination papers of the appellants are found incorrect and election held on 18-7-1993 to be void, a fresh election has to be held subsequent to the decision in this appeal. That election must be deemed to have been the continuation of the election proceedings initiated earlier and the election should be deemed to have been held on 18-7-1993. As a result of this fiction, it was submitted that in case the 6th appellant succeeds in the coming election, she must be deemed to have succeeded in the election held on 18-7-1993 and should further be deemed to have continued as a delegate of the second respondent Society to the Central Society and an elected member of the committee of the Central Society. This argument though quite attractive, we are afraid, cannot be accepted. It is because we had to take note of the passage of time between 18-7-1993 and the date of the coming election. In between these dates, many events have taken place. The term of office of the committee of the second respondent Society expired on 26-7-1993. On the expiry of the term, the sixth appellant ceased to be a member of the committee of the second respondent Society. In between these dates, many events have taken place. The term of office of the committee of the second respondent Society expired on 26-7-1993. On the expiry of the term, the sixth appellant ceased to be a member of the committee of the second respondent Society. Only as a member of the committee of the second respondent could she be nominated to the Central Society. The moment she ceased to be a member of the committee of the second respondent, she lost her position as a delegate to the Central Society. Consequently, she cannot be a member of the committee of the Central Society. When the term of office of the committee of the second respondent expired on 26-7-1993, sixth appellant ceased to be a member of the Central Society and consequently not a member of the committee of the Central Society. If she succeeds in the ensuing election her position as delegate to the Central Society will not revive, After getting elected, she must get nominated by the committee of the second respondent Society to become a delegate of the Central Society. Even if she gets the nomination and becomes a member of the Central Society, she cannot claim membership of the committee of the Central Society unless she gets elected thereafter. In other words, the sixth appellant's position as a delegate to the Central Society, which she lost on the expiry of the term of the committee of the second respondent Society on 26-7-1993, will not be revived even if she gets elected in the election which is to take place pursuant to the judgment in this appeal. 9. Rule 44A of the Rules states that a person appointed to represent a society in any other society and vote shall be a member of the committee of the society which he represents. It means that only a member of the committee of a primary society can represent it in the Central Society. The moment he ceases to be a member of the Committee of primary society, he will cease to be a delegate to the Central Society. R.46(f) of the Rules provides that a delegate of one society sitting on the committee of another society shall cease to be a member of the committee of the society which be represented. The moment he ceases to be a member of the Committee of primary society, he will cease to be a delegate to the Central Society. R.46(f) of the Rules provides that a delegate of one society sitting on the committee of another society shall cease to be a member of the committee of the society which be represented. So a member of the committee of the Central Society must cease to hold that office the moment he ceases to be a member of the committee of the primary society. Sixth appellant ceased to be a member of the committee of the second respondent Society on 26-7-1993. Therefore, she ceased to be a delegate representing the second respondent Society to the Central Society with effect from that date itself. Likewise, she has ceased to be a member of the committee of the Central Society with effect from 26.7. 1993. The election to be held can by no stretch of imagination be deemed as one held on 18.7.1993. In case sixth appellant comes out successful in the coming election, she cannot be considered to have won the election on 18.7.1993. Her position as a delegate to the Central Society and as a member of the committee of the Central Society will not revive even if she succeeds in the ensuing election to the committee of the second respondent Society. In this view of the matter, we decline the prayer made by Sri. M.K. Damodaran, senior counsel representing the appellant, to restore the sixth appellant's position as a delegate to the Central Society and as a member of the committee of the Central Society. 10. Since we have held that the nomination papers of the appellants were wrongly rejected, we declare that the election held to the committee of the second respondent Society on 18.7.1993 as void. The Returning officer, third respondent herein, should take effective steps immediately to hold election in continuation of the process which he pursued upto the actual polling held on 18.7.1993. Members who succeed in the said election should be put in office without any delay. Writ Appeal is allowed in the above terms and the Original Petition is dismissed.