BAPPU HAJI Vs. JOINT REGISTRAR

JUDGEMENT

(1.) The appellant before us, Sri. A. P. Bappu Haji, has filed this appeal with leave as he was not impleaded as a party in the writ petition. The writ petitioner, which is the Board of Directors of the Co-operative Bank in question, now figures as the first respondent in this appeal.

(2.) The point arising in this appeal touches upon certain aspects which have come up before a Division Bench of this Court in OP 1812 of 1992 (Ali Hassan v. State of Kerala and others) and batch dated 8-4-1992. The interpretation of Section 28 (1A) of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act') as introduced by Kerala Act 5 of 1992 and Rule 39 of the Rules also falls for consideration.

(3.) The facts of the case are as follows : The writ petition was filed by the President of the Board of Directors of the Co-operative Bank (hereinafter referred to as 'the Committee') which is a Society registered under the Co-operative Societies Act. As per Clause 33 (c) of the bye-laws, the term of the Committee was to be five years from the date of election. The present Committee is elected to office in the election held on 22-10-1989. Due to a stay order in regarding to the counting of votes granted by this Court in a Miscellaneous Petition in OP 8488 of 1989, the counting was held only on 24-2-1990 and the Board took charge on 26-2-1990. By operation of the Kerala Co-operative Societies Amendment Act of 1992 referred to above, the term of the Committee has been reduced to three years. It is stated, even in paragraph 2 of the memorandum of writ petition filed by the first respondent before us, that as per the amended Act, the Committee could continue in Office only till 30-6-1992. The Act contemplates every Society to take certain steps in regard to the election of the next Committee or the Board as the case may be, so that there will be continuity in the functioning of the Co-operative Society. In other words, the Act contemplates election of a new Committee or Board by an existing Society well before the expiry of its term, Rule 35 (1) of the Rules provides that the Committee in office shall meet at least 60 days in advance of the date of expiration of its term and pass a resolution fixing the date, time and place for conduct of election for the new committee. Bye-law clause 35 (A) of the Bye-laws of the Bank in question also permits conduct of elections sufficiently early so as to enable the newly elected Committee to succeed in office on the expiry of the terra of the existing committee. Therefore, the Committee in question in its meeting held on 20-3-1992 resolved to conduct election to the Managing Committee of the Society on 31-5-1992 in the general body meeting scheduled between 8 to 17 hours and the venue of election was also fixed. The said resolution is marked as Ext. P1. As prescribed by Rule 35 (1), there is no dispute that the said resolution was forwarded to the second respondent in the writ petition, namely, the Assistant Registrar of Co-operative Societies (General), Manjeri, Malappuram who is the authority to appoint the returning officer, formal request was also made in the said resolution for appointment of a returning officer for conducting the election. The request alongwith copy of the resolution was forwarded by registered post with acknowledgment due and the same was received by the Assistant Registrar of Co-operative Societies on 26-3-1992. The postal acknowlegment is marked as Ext. P2. It is said that there are 8,000 members in the Society and the voters list has also to be prepared for the purpose of election. The grievance of the writ petitioner-Board was that the Assistant Registrar of Co-operative Societies, inspite of the receipt of Ext. P1 resolution and the request of the Committee to appoint a returning officer, was not doing so and his inaction was highly suspicious in view of other influences that might be working on. The Board, therefore, filed the writ petition for the issue of a writ of mandamus directing the second respondent in the writ petition to appoint a returning officer for conduct of election to the managing committee of the Bank on 31-5-1992. A further direction was sought to permit the existing committee to continue in office till the fresh election. The writ petition was filed on 27-4-1992.