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2000 DIGILAW 287 (KER)

Radhakrishna Pillai v. Assistant Registrar

2000-06-05

M.R.HARIHARAN NAIR

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Judgment :- M.R. Hariharan Nair, J. The bye-laws of the second petitioner society provides for election once in three years. The second petitioner, therefore, passed Ext. P2 resolution on 22.4.2000 requesting the Assistant Registrar (General), Karthikappally to appoint a returning officer for holding fresh election on 2.7.2000. The grievance of the petitioners is that inspite of the above no action is taken for appointment as sought for. 2. The stand taken by the respondents is that the aforesaid clause in the bye-laws has lost significance in view of S.11 of the Kerala Co-operative Societies Amendment Act (Act 1 of 2000) whereby S.28 of the Co-operative Societies Act was amended to provide for a term of five years for the administrative committee. 3. The learned counsel appearing for the petitioners submits that the effect of S.28 and the two provisos thereunder is only that if the bye-laws so allowed, the committee can continue upto five years and that there is nothing contained therein which enables the continuance of the committee beyond three years if that is the limit set by the bye-laws concerned. 4. For convenience the aforesaid S.11 aforementioned may be quoted here: "11. Amendment of S.28 - In S.28 of the Principal Act, (i) in sub-s.(1), for the words "three years", the words "five years" shall be substituted; and for the third proviso thereunder, the following provisos shall be substituted, namely: "Provided also that a committee constituted prior to the commencement of the Kerala Cooperative Societies (Amendment) Act, 1999, shall be eligible to continue for a period of five years: Provided also that the above proviso is not applicable to a committee where the committee has passed a resolution before the commencement of the Kerala Co-operative Societies (Amendment) Act, 1999, for the conduct of election thereof. XXX XXX XXX XXX XXX XXX XXX XXX." 5. In the instant case the petitioners have no case that the society had passed a resolution for the conduct of fresh election before the Amendment Act was passed, ie., 1.1.2000. Nevertheless, their contention is that in view of the decision of this Court in K.A. Kurian v. Joint Registrar of Co-operative Societies (General), Kannur & Ors. (O.P. No. 6006 of 2000 B) the contention of the State has no merit. The very same matter was considered in that decision also. Nevertheless, their contention is that in view of the decision of this Court in K.A. Kurian v. Joint Registrar of Co-operative Societies (General), Kannur & Ors. (O.P. No. 6006 of 2000 B) the contention of the State has no merit. The very same matter was considered in that decision also. It was clarified therein by this Court that the first proviso aforementioned only means that in case the term of the Managing Committee is not exhausted and notification for election has not been issued prior to the commencement of the Amendment Act, then such Managing Committee can continue for five years. It was specifically held that to enable this the bye-laws should be amended. 6. Since the society involved in that case had not so amended its bye-laws and since the previous election was held for three years, it was found that fresh election was necessary after three years notwithstanding the amendment through Act 1 of 2000. 7. In view of the aforesaid decision the contention of the petitioners is well-founded. As long as the bye-laws provide for a term of only three years for the Managing Committee, it cannot be allowed to continue for more than three years by virtue of the enabling provisions contained in Act 1 of 2000. 8. The Original Petition is hence allowed. There will be a direction to the respondent to appoint a returning officer to conduct election to the Managing Committee of the second petitioner society as requested for in Exts. P2 and P3. In view of the fact that the date for election is 2.7..2000, necessary orders will be passed by the respondent in the matter within a period of one week from this date.