MANAGING COMMITTEE Vs. A P GOPALAKRISHNAN

JUDGEMENT

(1.) THIS is the second round litigation in this court pertaining to election to the Thiruvalla East Co-operative Bank Ltd. (hereinafter called the "Bank"). The Bank has 68000 members and atleast 25000 are issued with photo identification cards which is for the purpose of participating in the election to the Board of Directors of the Bank. The last election fixed on 24.10.2009 was postponed by the State Co- operative Election Commission and the same was published in the newspapers. However, on a writ petition filed challenging the postponement of the election, this court directed holding of election on the date usually fixed for the poll. However, the interim order of this court directing holding of the election was not published in the newspapers, whereas the postponement was published in the local newspapers. In the election held pursuant to the orders of this court, only a very low percentage of the members participated in the election i.e. as many as 4400 as against the 25000 members who have phot identification cards. In the Writ Appeals filed the Division Bench of this court felt that the election held with participation of very limited members did not achieve the purpose of constituting a proper Board of Directors which could be called a representative body of the members of the Bank. The election was, therefore, declared invalid vide our judgment in the batch case W.A. No.2392/2010 and connected cases and we ordered repoll without any delay. Though the election was set aside, we allowed the Board that was already constituted and taken over charge to function with a restriction against taking policy decisions. The SLPs. filed against the Division Bench judgment were dismissed by the Honourable Supreme Court. Therafter Review Petition was filed before the Division Bench wherein the Division Bench did not modify earlier judgment but issued certain direction with regard to issuance of photo identification cards. Another SLP was filed against the Review Orders issued by this court which was disposed of by the Honourable Supreme Court on 30.9.2010 directing fresh election to be held within six months from the date of the order. There was also direction by the Supreme Court to appoint an Administrator to oversee functioning of the managing committee which was permitted to continue in office by this court in the Writ Appeal judgment. Pursuant to the judgment of of this court and the order of the Supreme Court in the SLP, election was notified by the State Co-operative Election Commission on 23.9.2009.

(2.) THE above W.P.(C) is filed challenging the election so notified on the ground that it is in complete violation of the provisions of the Co-operative Socieites Act (hereinafter called "the Act") amended by Act 7 of 2010 which came into force on 28.4.2010. THE petitioner in the W.P.(C) is a retired Co-operative Bank Manager who is entitled to contest election to the Board of Directors of the Bank in the quota reserved under the newly introduced Section 28AA of the Act. THE petitioner's case is that after the amendment to the Act by the Act 7 of 2010, the Board cannot be constituted in the way it is notified by the Co-operative Election Commission which is to elect 11 members with one seat reserved for Scheduled Caste and one for women. Under the amended provisions, mandatory reservation provided is 7 of which three should go to women, two for experts in the field of banking or other professions, one for members holding deposit above Rs.10,000/- and one for Scheduled Caste. Even though election was notified pursuant to judgment of this court and the order of the Honourable Supreme Court in the SLP, learned Single Judge felt that such election should be consistent with the amended provisions of the statute which requires initiation and completion of the entire election process and not just a repoll pursuant to the judgment of this court and the order of the Honourable Supreme Court in the SLP. In these circumstances, the learned Single Judge granted stay against holding of election as notified by the State Co-operative Election Commission.

(3.) COUNSEL for the petitioner has relied on judgment of this court in AZEEZKUTTY VS. RETURNING OFFICER reported in 2008(4) KLT 165 and contended that amendment to the Act has the effect of overruling bye-laws of the Society and after the amendment came into force, no election could be made against the mandatory provisions of the statute. Senior counsel appearing for the respondents on the other hand contended that neither this court nor the Honourable Supreme Court interfered with the election first notified in 2009 and all what the court directed was repoll of the election already notified. According to him, since the Supreme Court has not reversed the judgment of this court, the election ordered to be held pursuant to the orders issued in the SLP on 30.9.2010 is also a repoll only and not an initiation of fresh election proceedings. As already stated by us, the amendment was introduced after this court rendered judgment in the batch cases and passed orders in the Review Petitions and, therefore, the amended provisions of the Act were not in the contemplation of this court when judgment and orders were issued. Even though the Honourable Supreme Court considered and disposed of the SLP after the provisions of the Act were drastically amended, none of the parties including the respondents brought the same to the notice of the Honourable Supreme Court. In fact, respondents themselves could have moved the Supreme Court for a clarification as to whether election should be a repoll or whether it should be in accordance with the amended provisions of the Act. In our view, the only question to be considered is whether the Honourable Supreme Court would have permitted an election contrary to the provisions of the statute, if the amendment was brought to the notice of the court at the time of disposal of the SLP. What the Honourable Supreme Court has directed is to hold fresh election within six months. In our view, the order implies that election should be held in accordance with the provisions of the Act and Rules and the Bye- laws of the Society which obviously means that the members to be elected to the Board should be in accordance with the amended provisions of the Act. The Honourable Supreme Court was well aware of the long time required for initiation and completion of the process of election and that is why six months' time was granted from the date of the order. If the Board of Directors and the statutory authorities have taken steps to amend the Bye-laws of the Bank consistent with the amended provisions of the Act, then election could have been held in terms of the amended provisions probably even within the time fixed by the Honourable Supreme Court. The election so held, in our view, would not have been a violation of the judgment of this court or the order of the Honourable Supreme Court in the SLP. The demand of the respondents for a repoll of the election originally notified without taking into account amendment to the Act, cannot be accepted because any election notified after amendment to the statute should be to constitute Board of Directors of the Bank consistent with the amended provisions of the Act which provides for seven members from the reserved quota as against two proposed to be elected under the existing Bye-laws of the Bank. In our view, the Board to be constituted in the fresh election pursuant to the orders of this court and that of the Honourable Supreme Court will have the full tenure of 5 years. Therefore, we do not find any justification to permit fresh election against the mandatory provisions of the Act introduced more than one year back. Therefore, we uphold the view taken by the learned Single Judge in the interim order impugned in the Writ Appeal i.e. to hold fresh election based on the order of the Honourable Supreme Court in the SLP dated 30.9.2010 in accordance with the amended provisions of the Act. We, therefore, dismiss the Writ Appeal filed against interim order and allow the W.P.(C) by directing the Administrator to amend the Bye-laws after holding General Body meeting for fixing the number of members of the Board of Directors in accordance with the provisions of the Act and Rules simultaneously providing reservations also in accordance with the amended provisions of the Act. This should be done at the earliest and within the minimum required time and the Co- operative State Election Commission is directed to conduct fresh election in accordance with the amended provisions of the Act without any delay. In view of our above direction, if the election could not be held within the time stipulated by the Honourable Supreme Court in the order in the SLP dated 309.9.2010, it is upto the concerned parties to apply for extension of time before the Honourable Supreme Court for compliance with their order.