Judgment :- J.B. Koshy, J. Petitioners are members of the third respondent society. Second petitioner is a member of the Board of Directors whose term expired on 30.5.1999. As per the Bye-laws of the society, members of the managing committee are nine. Since four of them have resigned from the managing committee, only five remained. As per S.28(5) of the Kerala Co-operative Societies Act thereinafter referred to as 'the Act'), quorum for a meeting of the committee shall be such number of members just above fifty percent of the total number of members of the committee. Therefore, quorum for a valid meeting of the Board of Directors is 5. On 30.3.1999 a meeting of the Board of Directors was convened in which all the five Directors have attended initially. Decision to conduct election should be taken before sixty days of the expiry of the term of the committee. Therefore, a decision had to be taken regarding the election to be conducted on 30.5.1999 as the term of the committee was to expire on 30.5.1999. According to the petitioners, they had some objection regarding membership of certain persons and, therefore, second petitioner left the meeting and resolution No. 275 and some other resolutions were passed in the above committee meeting including the resolution to conduct the election on 30.5.1999. According to the second petitioner, when the above resolution was passed, he was not present and the remaining four members will not constitute quorum and, therefore, that resolution is not valid. Consequent to that resolution, a returning officer was appointed and Ext. P1 notice of election was published fixing the election on 30.5.1999. Draft voters list was published and after objections, final voters list was also published. Nomination papers were filed. Scrutiny of nominations was also over. Only one candidate each filed nomination for five wards. Therefore, there is no need to conduct election in those five wards. Election is to be conducted in Ward Nos. 3, 5, 7 and 8 (four wards) where nominations were accepted from more than one person. At this juncture, Original Petition was filed for canceling the election process started by Ext. P1 notice as the date was fixed on the basis of an invalid resolution. 2. Election is to be conducted in Ward Nos. 3, 5, 7 and 8 (four wards) where nominations were accepted from more than one person. At this juncture, Original Petition was filed for canceling the election process started by Ext. P1 notice as the date was fixed on the basis of an invalid resolution. 2. According to the petitioner, in all the previous meetings, signatures were obtained from the members of the committee who were attending the meeting at the beginning as well as at the end. Bye-law 41 provides that all matters decided or discussed in the meeting should be recorded in the minutes book and President and Secretary and Directors who are present in the meeting should sign the minutes book. The matter was considered by my late brother Justice Krishnan Unni at the time of admission and further proceedings with regard to the election including publication of result was stayed by him in C.M.P. No. 19612/99. Since certain prima facie findings were mentioned in the order, after perusing the records, I am reproducing the relevant portion of the order: "In the old minutes book at page No. 300 the second petitioner has signed as a person who was present. But the second petitioner's case is that he has left the meeting when resolution No. 275 was taken at that time there were only four members. The particular minutes is contained in page 300 of the old book and is continued in a new book. A perusal of the previous minutes book show that signatures of all the members present are affixed after the decisions are taken and resolutions are recorded in the minutes book. But in this particular meeting after the resolutions are recorded at page 20 only the President has signed and other members present had not signed. In view of this circumstance, the contention of the second petitioner is that he was not a party to the resolution and in that case only 4 members were present when the decision to conduct the election was taken and, therefore, it is invalid. S.28(5) of the Co-operative Societies Act lays down that the quorum for a meeting of a committee shall be such number of members just above fifty percent of the total number of members of that committee. S.28(5) of the Co-operative Societies Act lays down that the quorum for a meeting of a committee shall be such number of members just above fifty percent of the total number of members of that committee. The total number of members of Board of Directors of this society is 9 and, therefore, the minimum requirement is 5 members. In view of the above, it would appear from the records that Ext. P1 notification is not validly constituted." 3. Main questions to be considered in this case are (1) whether quorum is necessary at the time of passing of each resolution or is it enough that meeting started with quorum and thereafter that meeting can pass any resolution; (2) a disputed question of fact that whether petitioner was actually present when the resolution was passed; (3) whether there are any reasons to interfere with the election process in a petition under Arts.226 or 227 of the Constitution. 4. First I may consider the question regarding necessity of quorum at the time of passing resolutions. S.28(5) of the Act provides as follows: "The quorum for a meeting of a committee shall be such number of members just above fifty per cent of the total number of members of that committee." The above provision is not specific whether quorum is enough at the starting of the meeting or whether quorum is necessary at the time of passing a resolution. Clause 38(b) of Bye-laws of the Society provides as follows: A reading of the above bye-law shows that at the time of deciding a subject 50% of the members of the Director Board should be present. It gives an indication that at the time of deciding each resolution there should be quorum for the meeting. 5. In Re Hartley Baird Lid's case ((1954) 3 Al1.E.R.695) (Chancery Division) question of quorum at the general meetings is considered. The relevant clause considered was Arts.52 and 53 of the Companies, Act which were as follows: "52. No business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. For all purposes the quorum shall be ten members personally present." "53. If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting, if convened on de requisition of members, shall be dissolved. For all purposes the quorum shall be ten members personally present." "53. If within half an hour from the time appointed for the holding of a general meeting a quorum is not present, the meeting, if convened on de requisition of members, shall be dissolved. On the wording of the above articles, it was held that to satisfy the quorum of the meeting it is enough that quorum is present at the beginning of the meeting only. This was referred to in the subsequent decision in Re London Flats Ltd ((1969) 2 A11.E.R.744) (Chancery Division). In that case, there were only two members in the Director Board and, therefore, it was held that the moment when one member left there is no meeting as a single shareholder is unable to constitute a meeting. On a reading of the above decision shows that main point decided was not about the quorum but to the question whether one member alone can continue with the meeting. Unlike the provisions in the Companies Act concerned in these decisions, here, the question is in the absence of a provision that quorum is necessary only at the initiation of the meeting when the provision is not specific in the Act is it enough that at the earlier stage of the meeting quorum is present and members for constituting quorum are absent when real business is transacted. Considering the Hartley Baird Ltd's case Shackleton has stated as follows: " Although the case was rightly considered in the light of particular regulations, the general question of the validity of a resolution passed when a quorum was present "when the meeting proceeds to business" but not when the actual resolution is put to the meeting remains to be resolved". (Shackleton on "The Law and Practice of Meetings" page 191) Shackleton has also stated in page 45 as follows: "It was not sufficient if, when the quorum had once assembled, the corporate act was done by a majority of those remaining after some members of the quorum had left the meeting". 6. I may also refer to the Practice and Procedure of Parliament in England. Standing Order No. 55 provides that the quorum of the House of Lords is three of whom one may be a Lord attending to take the oath. 6. I may also refer to the Practice and Procedure of Parliament in England. Standing Order No. 55 provides that the quorum of the House of Lords is three of whom one may be a Lord attending to take the oath. However, if fewer than thirty Lords have voted in a division upon a bill or subordinate legislation, the matter is to be declared not decided and the matter adjourned to a subsequent sitting. It shows that if a division is necessary at the time of taking the division, there should be quorum. Standing Order No. 40 provides that forty members including the Speaker form the quorum 61 the House but the absence of a quorum does not entail the termination of a sitting. But, if a division is necessary, then, forty members are necessary and if there is no quorum, the business under consideration stands over until the next sitting of the House. Similar is the procedure in India also and the Practice and Procedure of Parliament in India states that: "The quorum to constitute a sitting of the House is one-tenth of the total number of members of the House. If at any time during a sitting of the House there is no quorum, it is the duty of the Speaker or the person acting as such, either to adjourn the House or suspend the sitting until there is quorum". Here, the wording of Bye-law is very clear. The bye-law clearly states that at the time when a subject is decided there should be quorum. Hence, there is no doubt that at the time of deciding the matter there should be quorum. A different conclusion cannot be taken by interpretation of S.28(5) also. S.28(5) of the Act insists for a quorum in the meeting. It is not stated that quorum is enough at the time of beginning of the meeting. Considering the Parliamentary practice and discussion of various decisions quoted at the Bar, I am of the opinion that quorum is necessary at the time of division (voting) on the resolution. 7. Second question is whether the second petitioner was actually present when the resolution was passed. There is nothing on record to show that second petitioner was absent when the resolution was passed. At the beginning of the meeting second petitioner signed the proceedings. 7. Second question is whether the second petitioner was actually present when the resolution was passed. There is nothing on record to show that second petitioner was absent when the resolution was passed. At the beginning of the meeting second petitioner signed the proceedings. It is stated nowhere in the minutes that he left before passing the resolution. Contention is that in all other previous meetings at the end of the meeting also, all the persons present signed. Here, at the end of the meeting only the President and Secretary have signed, which, according to the petitioner, is manipulated because there was no quorum. Explanation offered by the respondent is that usually signature is put at the end of the meeting in the next meeting or on a subsequent occasion. Nowhere in the minutes it is stated that the second petitioner went out of the meeting when resolution No. 275 is passed. Why normal practice of obtaining signature at the end of the meeting is also not sufficiently established. This requires detailed enquiry. The resolution is for conducting the election. Ext. R4 (b) is a subsequent letter containing a request made by the Director Board members to appoint a returning officer to conduct the election on the basis of the above resolution. It is seen signed by the second petitioner also. Case of the petitioner is that the above resolution was written on the blank paper submitted to the bank for some business purposes. This is denied by the respondent. This also cannot be decided in a writ petition on affidavits without detailed evidence. But, signatures in Ext. R4(b) are not disputed. According to the second petitioner, petitioner did not agree to pass the resolution only because of some dispute regarding membership. But, according to the respondent Ext. R4(c) shows otherwise and second petitioner by Ext. R4(d) requested for nomination paper. It is averred in the counter affidavit on behalf of the 4th to 8th respondents that second petitioner was actually present when the resolution was passed. It is stated as follows: "6. I submit that myself and respondents 5 to 8 were present in the meeting of the Board of Directors held on 30.3.1999. The second petitioner was also present in the meeting. It is submitted that when the matter regarding the conduct of election was discussed, the second petitioner was very much present in the meeting. I submit that myself and respondents 5 to 8 were present in the meeting of the Board of Directors held on 30.3.1999. The second petitioner was also present in the meeting. It is submitted that when the matter regarding the conduct of election was discussed, the second petitioner was very much present in the meeting. The second petitioner never objected about the proposed conduct of the election on 30.5.1999 as alleged in paragraph 2 of the Original Petition". Since it is categorically averred that second petitioner was present and disputed question of facts cannot be decided finally in this proceeding/ prima facie, I am of the view that in view of Ext. R4(b) it is not possible for the petitioners to say that they were not aware or parties to the resolution, without adducing further evidence. 8. Petitioners filed Exts. P2 and P3 representations only on 15.5.1999 and 19.5.1999 respectively. The resolution was passed on 30.3.1999. If the petitioners were not in favour of the resolution for conducting the election, petitioners should have raised objection immediately. Being a Board member second petitioner should have verified with the Registrar to ascertain what were the minutes recorded in the above meeting if he had left the meeting on the ground of objection and should have taken immediate action. Here, petitioners filed objection only after Ext. P1 election notification was published. On that ground of delay alone, I am notin a position to accept the contention of the petitioners without further evidence on disputed questions. 2nd petitioner was not able to prove conclusively before me that he was not present when the resolution was moved especially in view of Ext. R4(b). 9. Apart from the above, I see no ground to interfere in the resolution or the election process which has already commenced under Arts.226 or 227 of the Constitution of India. It is not disputed that term of the managing committee was over on 30.5.1999. The decision to conduct election should be taken before sixty days prior to the expiry of the term of the committee. Therefore, it was obligatory for the committee to take a decision on or before 30.3.99 and the decision was taken and acted upon. This Court has consistently held that as far as possible, societies should be administered by elected committees except in special circumstances where Administrator has to be appointed. Therefore, it was obligatory for the committee to take a decision on or before 30.3.99 and the decision was taken and acted upon. This Court has consistently held that as far as possible, societies should be administered by elected committees except in special circumstances where Administrator has to be appointed. So, election was fixed on 30.5.1999 as per Ext. P1 notice. But, polling was not finally conducted in view of the stay order passed. From the papers, it assumes that the only objection raised by the petitioner was regarding the membership given to some persons. In Ext. R4(c) petitioner himself accepted the question whether admission of membership is correct or not. In any event, term of the committee is over on 30.5.1999 and the new committee has to be elected. Ext. P1 is an election notification which was published by the returning officer. In fact, second petitioner himself had applied for nomination paper. Election process once started cannot be interfered at this stage by using the discretionary power under Arts.226 of 227 of the Constitution of India. 10. Considering the fact that even though resolution was passed in March, 1999 and no objection was made by the petitioner till election notification was published and considering the fact that the term of the managing committee was over with effect from 30.5.1999,1 see no reason to interfere in the election process already started. However, the petitioner will be free to file election petition and if an election petition is filed, it shall be decided untrammeled by the prima facie observations on disputed facts in this judgment. Question whether petitioner was actually present when resolution No. 275 was passed, whether Ext. R4(b) and (c) can be relied on etc. can be finally decided only after adducing detailed evidence before the appropriate forum. The Original Petition is, therefore, dismissed without prejudice to the rights of the petitioners in moving election petition. The election process may be continued from the stage it was stayed. It is submitted that since stay order was issued on 28.5.1999 all process except the polling was over. The polling date may be rescheduled and election be conducted accordingly.