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2016 DIGILAW 929 (KER)

Cherian Eapen v. Thiruvalla East Co-Operative Bank Ltd

2016-11-01

ANIL K.NARENDRAN, V CHITAMBARESH

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ORDER V. Chitambaresh. J. 1. We would not have normally interfered with the election process to the managing committee of the Thiruvalla East Co-operative Bank Limited but for the startling developments unfolded. It is not in dispute that the election calender has been published pursuant to the judgment in w.A.No. 1869/2016 as per which the polling has to take place on 5.11.2016. But what baffles us is the fact that the final voters list contains only 28 members as against 611 members found in the preliminary voters list published. The reason for such drastic depletion in the number of members eligible to vote has been disclosed in the statement filed by the electoral officer as follows:- "Out of more than 70,000 members of the society in the 57th General Body Meeting, only 94 members attended the meeting. In 58th General Body Meeting, 121 members attended the meeting, it is recorded that in the 59th General Body Meeting, 749 members attended the meeting. A perusal of the attendance in three consecutive General Body Meeting would show that only 33 members has attended all the three consecutive General Body Meeting and out of the said 33 members, only 28 members had availed the service of the Bank for the two consecutive years." Thus the reason for exclusion of 611-28 = 583 members is that they have not attended three general body meetings of the society consecutively in order to be eligible for figuring as a voter. 2. There is no hesitation for us to hold that the statutory provision contained in Section 16A(l)(b) of the Kerala Co-operative societies Act has been misconstrued by the electoral officer. The same reads as follows:- "16A. Ensuring participation of members in the management of societies:- (1) NO member shall be eligible to continue to be a member of a co-operative society if he, (a) is not using the services of the society for two consecutive years or using the services below the minimum level as may be prescribed in the rules or the bye-laws; (b) has not attended three consecutive general meetings of the society and such absence has not been condoned by the members in the general meeting." (emphasis supplied) Thus only members who have not attended atleast any one of the three consecutive general body meetings of the society are alone ineligible to continue as a member of the co-operative bank. The exclusion of 583 members from the preliminary voters list in the final voters list on the basis of the misinterpretation of the statutory provision is prima facie illegal. 3. An Annual General Body Meeting has obviously to be convened for the purpose of election in the prescribed manner as per Section 29(1)(b) of the Kerala Co-operative Societies Act. But the quorum for a General Meeting in order to transact business therein is 50 as per clause 22 of the bye-laws of the Co-operative Bank in question. No election can be conducted even if all the 28 members are present in the General Meeting when the number falls short of 50 as the quorum specified in the bye-laws. The General Meeting convened to conduct an election in compliance with the judgment in w.A.No.1869/2016 would be reduced into a mockery in the circumstances. This is one way of entrusting the management of a co-operative bank to an Administrator under the Kerala Co-operative Societies Act in the guise of an election. we are also of the prima facie opinion that the Government Order dated 15.10.2016 granting exemption under Section 101 of the Act does not apply to this co-operative bank. 4. We are not for a moment holding that all these 611 members found in the preliminary voters list are eligible to vote as the same is open to question in an election dispute, whether a register in Form 32 on the basis of which the list of 611 members has been prepared has to be gone into under Section 69 of the Kerala Co-operative Societies Act. Similarly the infraction if any of Section 16A and 19A of the Kerala Co-operative Societies Act are also matters to be adjudicated as and when a statutory dispute is raised. The cut off date for implementation of the amended provision of Rule 18A of the Kerala Co-operative Societies Rules has been clarified to be 26.11.2016 in S.L.P.No.27046/2016. The judgment in Pradeep U.R. And another v. Kerala state Co-operative Election Commission and others, 2016 (4) KHC 93 (FB) stands modified as above. The implementation of the amended provisions of the Kerala Co-operative Societies Act and the Rules does not therefore depend on the birth of a "Co-operative year'. The judgment in Pradeep U.R. And another v. Kerala state Co-operative Election Commission and others, 2016 (4) KHC 93 (FB) stands modified as above. The implementation of the amended provisions of the Kerala Co-operative Societies Act and the Rules does not therefore depend on the birth of a "Co-operative year'. Interest of justice would be met by directing the election to go on as scheduled permitting all the 611 members aforesaid to cast their vote in the election to the managing committee. The same would however be provisional and subject to these writ petitions and also the invocation of Section 69 of the Kerala Co-operative Societies Act.