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1994 DIGILAW 252 (KER)

Kottappady Service Co-op. Bank v. Asst. Registrar

1994-07-07

T.L.VISWANATHA IYER

body1994
Judgment :- This batch of cases is a typical example of the proliferation of cases in the cooperative sector and of the sector constituting a fertile field of litigation in this court. The projected election to the managing committee of a co-operative society has sparked off altogether five writ petitions just in the course of about six weeks. I shall state the bare facts necessary for the disposal of these cases. 2. The term of office of the managing committee of the Kottapady Service Cooperative Bank Ltd., a society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as the Bank) is expiring on July 12, 1984. The managing committee in office passed a resolution on April 22, 1994 to hold the election on July 10, 1994, two days prior to their laying down office. I may at once state that there is no dispute about the validity of this resolution. The resolution was duly communicated to the authorities with request to appoint a Returning Officer. No appointment was made as requested, which resulted in the managing committee filing O.P.No.6890 of 1994 on May 25,1994, for the issue of a writ of mandamus commanding the Assistant Registrar of Co-operative Societies to appoint a Returning Officer to conduct the proposed election. 3. In the meanwhile and on May 23,1994, the Assistant Registrar had passed an order rejecting the prayer for appointment of a Returning Officer. He filed a counter affidavit putting forward this order as a defence to O.P.No. 689 of 1994.1 shall come to the reasons for the rejection of the request and for the non-appointment of the Returning Officer later. Suffice it to say, on receipt of this counter affidavit, the petitioner in O.P.No.6890 of 1994 filed C.M.P.No.13005 of 1994 to amend the writ petition incorporating a prayer for quashing the proceedings of the Assistant Registrar dated May 23, 1994. They also filed another writ petition O.P.No.7473 of 1994 challenging the said order which is marked Ext. P1 therein. I shall refer to this order of the Assistant Registrar as Ext. P1 for purpose of convenience of reference and discussion. 4. They also filed another writ petition O.P.No.7473 of 1994 challenging the said order which is marked Ext. P1 therein. I shall refer to this order of the Assistant Registrar as Ext. P1 for purpose of convenience of reference and discussion. 4. Two of the members of the Bank, namely C.A. Jose and P.N. Kunjappan claimed that there were a large number of persons on the membership roll of the Bank who were ineligible to be members as they were residing outside the area of operation delimited to the Bank. They claimed that they had made a representation to the managing committee of the Bank on December 6,1993 to remove these persons, from membership. (The receipt of this representation is denied by the managing committee). These persons filed a petition before the Joint Registrar on March 28, 1994 requesting action for the removal of the ineligible persons from the membership of the Bank. It is said that the number of such ineligibles is 393. On the complaint that no action has been taken on the petition these two persons filed writ petition O.P.No.5858 of 1994 in this court seeking a direction to the Joint Registrar to take action on their petition. This writ petition was filed on April 23,1994. The day next after the managing committee took the decision to hold the election on July 10, and was disposed of on April 26, with a direction to the joint Registrar to pass orders on the petition as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this judgment. It was further observed that if the objection was found sustainable further follow up action should be taken to rectify the defects in the membership register of the Bank. 5. The enquiry as directed in the aforesaid judgment is going on and is yet to be concluded. Fourteen members of the Bank including a member of the managing committee received a notice relating to this enquiry from the Assistant Registrar which they challenged by filing O.P.No. 7238 of 1994. 6. Meanwhile C.A. Jose and P.N. Kunjappan felt aggrieved by what they believed to be the on going election process and filed O.P.No. 7172 of 1994 to stop the election process till a decision was taken on the eligibility or otherwise of the 393 persons to continue as members. 7. 6. Meanwhile C.A. Jose and P.N. Kunjappan felt aggrieved by what they believed to be the on going election process and filed O.P.No. 7172 of 1994 to stop the election process till a decision was taken on the eligibility or otherwise of the 393 persons to continue as members. 7. The reasons stated in Ext. P1 to reject the prayer for appointing the Returning Officer was the existence of the enquiry into the question of ineligible members and the inability to conduct a poll without the eligibility of these persons being decided. It was stated in Ext. P1 that it was not in the best interests of the Bank to conduct an election with ineligible members in the voters' list. 8. The primary question arising for consideration is the validity of Ext. P1. The others are subsidiary. The reason stated for the passing of Ext. P1 is that an enquiry is afoot regarding the eligibility or otherwise of 393 members. According to the counter affidavit filed by the first respondent in O.P.No. 6890 of 1994 he has prima facie found that all the 393 members are ineligible to continue as members of the Bank. The managing committee of the Bank had acted diligently in passing its resolution on April 22,1994 to have the elections held on July 10, 1994 before the expiry of its term. It is the petition filed by Jose and Kunjappan that triggered off the enquiry relating to 393 members. That petition was filed on 28-3-1994, but the action thereon appears to have been lackadaisical. I will not in the normal course be inclined to stop an election process which has been set in motion legally. The fact that some of the members are subsequently reported to be ineligible, will not in my opinion be a ground to stop the election process. It is true that there should be a correct voters' list of all the eligible members to vote. But that list has to be prepared in accordance with the membership register of the society. It is likely that there are deaths as well as departures which will require modification in the membership roll. But that is a matter on which those who are interested in the election process should address themselves sufficiently early so that the membership roll may be updated with the deletion of those who are ineligible or who are no longer alive. But that is a matter on which those who are interested in the election process should address themselves sufficiently early so that the membership roll may be updated with the deletion of those who are ineligible or who are no longer alive. It is imperative that the election should be held in due time and that as far as possible the society should not go to the hands of an Administrator. But it is never possible to have a cent percent correct voters' list inasmuch as it is likely that there will be deaths and departures even after the preparation of the voters' list and prior to the election which may render it incorrect. But that will be no reason to postpone the elections. It may not be possible for the managing committee to go round making enquiries about the continued existence or continued eligibility of the members with reference to all the factors of eligibility. It may not be possible for them to go and make a constant enquiry on these aspects with a view to see that the membership roll does not contain ineligibles or those who are dead and gone. The societies do not have the infrastructural facilities nor the wherewithal to make such periodical enquiries to update the voters' list as in the case of the Representation of the People Act. Therefore, it is upto those who are interested or who have knowledge of any alleged ineligibility to bring such facts to the notice of the managing committee in due time so that action may be taken and the membership roll updated correctly. Here again it must be noted that the removal of a person from membership does take time as it can be done only after notice to the person concerned and after affording him an opportunity of being heard. Naturally it takes time. Persons like Jose and Kunjappan who claim to be interested in the purity in the electoral process, should therefore have moved sufficiently early, or periodically as and when it came to their notice and knowledge to have the 393 members removed from the membership roll. I am not prepared to believe that these three hundred and ninety thee persons moved out of jurisdiction all at once so that Jose and Kunjappan could move their petition only on 28-3-1984. I am not prepared to believe that these three hundred and ninety thee persons moved out of jurisdiction all at once so that Jose and Kunjappan could move their petition only on 28-3-1984. At this stage, I may also mention that their case that they informed the managing committee about this as early as on 6-12-1993 is not possible of acceptance when that fact is denied by the managing committee and there is no evidence to show that any such representation was made to the managing committee on 6-12-1993. The first petition on which any action could have been taken was that submitted to the Joint Registrar on 28-3-1994, on which the proceedings regarding the eligibility or otherwise of the 393 members are going on. 9. It was contended and I should think rightly, that a correct voters' list is a sine qua non for a valid election. The proposition cannot be doubted. None can contend that an incorrect voters' list can form the foundation of a proper election. But that does not mean that till absolute correctness is reached, no election can be held. What is required is a voters' list which accords with the membership roll, with perhaps those admittedly dead and gone removed therefrom. I do not think the correctness of the voters list is expected to go beyond that, as that will render the election well nigh impossible. Indefinite postponement of an election awaiting completion of enquiries made on a petition like that of Jose and Kunjappan is not called for nor is it desirable, as the normal state of governance of a co-operative society should be through its managing committee and management through an Administrator only resorted to in exceptional cases where it is inevitable, in the circumstances enumerated in S.32. 10. It was suggested before me that rectification of a voters' list by removal of alleged ineligibles was a matter within the purview of the returning officer when he deals with the objections to the voters' list furnished by the managing committee and finalises it, under R.35(3)(B). It was so held in Alleppey Co-op. Department Staff Coop. Society v. Joint Registrar, 1994(1) KLT 512 =1994 (1) KLJ 575. But I have my own doubts in the matter regarding the competence of the returning officer to delete any names from the voters' list on the ground of ineligibility. It was so held in Alleppey Co-op. Department Staff Coop. Society v. Joint Registrar, 1994(1) KLT 512 =1994 (1) KLJ 575. But I have my own doubts in the matter regarding the competence of the returning officer to delete any names from the voters' list on the ground of ineligibility. What is the competence or jurisdiction of the returning officer to adjudicate on the eligibility or otherwise of a member to vote? Every member of a society ie. every person who has been admitted to membership of the society (except those covered by S.19) has one vote in the affairs of the society (vide S.20). A member, once admitted, continues to be a member unless expelled under S.17 or removed after following the procedure prescribed in R.16(3). The power of expulsion or removal is vested in the general body and the managing committee respectively. If a person is thus a member of the society, he is entitled to exercise a vote under S.20. I do not find anything in the Act or the Rules entitling the returning officer to deprive a member of this right of his to vote, on the basis of some alleged ineligibility for membership. What is stated is that the returning officer only removes him from the voters' list and not from membership. This is incongruous - a member of the society without a right to vote in the affairs of the society is not contemplated by S.20. A member cannot be deprived of this right on the basis of objection raised by somebody, without the affected member having any right of say in the matter. The time left for the returning officer to finalise the voters' list is very short, say two or three days or even less. Where is the facility for him to make enquiries about the ineligibility or otherwise to be a member? Ineligibility can arise on various grounds - a person being a minor, or his being outside the area of operation of the society or his being a member of another similar society and the like. Where is the facility for him to make enquiries about the ineligibility or otherwise to be a member? Ineligibility can arise on various grounds - a person being a minor, or his being outside the area of operation of the society or his being a member of another similar society and the like. Suppose, in a given case, objection is raised to the inclusion of a person in the voters' list on any one of these grounds, does the returning officer have the machinery or the facility to enquire into any of these matters before removing him from the voters' list, and that too within the very short time of two or three days available to him? And what about compliance with the principles of natural justice? The Rules does not provide for notice to the person affected before his name is removed from the voters' list. Even by reading the requirement of natural justice into the rule, where is the time or the facility for the returning officer to issue notice to and hear the affected persons before taking any decision on their eligibility? Necessarily, a decision will be taken which will deprive the person of his very valuable right to vote and participate in the affairs of the society without any notice to him. This will be the direct consequence of vesting the returning officer with the power of removing an alleged ineligible from the voters' list, despite his continuing in the membership roll. The damage will be irreparable, as the affected member has no speedy remedy by which to undo the damage within the short time left for the election. 11. It is for all this that I am of the view that the power of the returning officer is limited to make the voters' list in accord with the membership roll, to supply omissions therein, delete duplications, correct mistakes in the details or remove admittedly dead persons and the like. The power cannot be extended beyond this. I would have referred this case for decision by a Division Bench for reconsideration of the aforementioned decision, but for the fact that I am disposing of the writ petition with certain directions having regard to the inability to hold the election on July 10, 1994 at this juncture. 12. The power cannot be extended beyond this. I would have referred this case for decision by a Division Bench for reconsideration of the aforementioned decision, but for the fact that I am disposing of the writ petition with certain directions having regard to the inability to hold the election on July 10, 1994 at this juncture. 12. I do not find anything in the judgment in O.P.No. 5858 of 1994 which required stoppage of the election to enable the completion of the enquiry regarding the eligibility or otherwise of the 393 persons. This court did not in the said judgment direct the stoppage of the elections as contended by counsel Sri. A.K. Avirah appearing for C.A. Jose and P.N. Kunjappan. That writ petition was disposed of at the admission stage inasmuch as only a limited relief of direction to dispose of a representation was being granted. In these circumstances, this court only directed the Joint Registrar to dispose of the petition in question, with a further direction to take appropriate follow up action to rectify the mistakes in the membership register of the Bank. What was intended was that if all or any of the 393 persons were found ineligible to be members, then the Joint Registrar must take appropriate action for their removal from the membership register. This court did not make any direction regarding the continuance or otherwise of the election process. 13. In the view that I have taken, the refusal of the Assistant Registrar to appoint a returning officer as per Ext. P1 is unsustainable. But and despite this illegality it is not possible to grant any relief to the petitioners in O.P.Nos. 6890 and 7473 of 1994, except to declare that the Assistant Registrar in question acted on irrelevant grounds in passing the order Ext. P1-. He has thereby wrongfully declined to perform a duty cast on him by law. I aim declining relief only because it is not now possible to hold the election on or-before July 10, 1994. But it is necessary that the election should be held at the earliest. The judgment in O.P.No. 5858 of 1994 had directed completion of the enquiry within a period of six weeks from the date of receipt of a copy of the judgment. But it is necessary that the election should be held at the earliest. The judgment in O.P.No. 5858 of 1994 had directed completion of the enquiry within a period of six weeks from the date of receipt of a copy of the judgment. Though no information is available as to what was the date of receipt of the judgment, it is clear that it had been received even in the month of May so that the time fixed by this court is over. The way is therefore clear for holding the elections. Giving sufficient time for the formalities it is possible to hold the election before September 24, 1994. 14. Since the notice issued under challenge in O.P.No. 7238 of 1994 is not in any manner illegal, no relief is liable to be granted therein. 15. One further question for consideration is whether the existing managing committee should be allowed to continue in office till the election is held, as the postponement of the election is not due to any fault on their part, but because of the illegal order Ext. P1 passed by the Assistant Registrar. I do not think it necessary to grant any such permission as the tenure for which the managing committee was elected expires on July 12, 1994 and they have no title to continue in office thereafter. 16. The original petitions are accordingly disposed of as follows: O.P.Nos. 7172 and 7238 of 1994 are dismissed. O.P. 7473 of 1994 is dismissed as unnecessary since the same order Ext. P1 is under challenge in O.P. 6890 of 1994 as amended by CMP No. 13005 of 1994. O.P.No. 6890 of 1994 is disposed of with a declaration that the order referred to by me as Ext. P1 in this judgment (marked Ext. RI (a) therein) is illegal and void. Respondents 1 and 2 are directed to ensure that election to the managing committee of the Bank is held and results declared on or before September 24, 1994. The voles' list for the election will be prepared on the basis of the result of the enquiry regarding the eligibility or otherwise of the 393 persons for continued membership of the Bank.