RAJACHANDRAN PILLAI Vs. GIREESAN

JUDGEMENT

(1.) The petitioners who formed the committee of Karavaram Panchayat Service Cooperative Bank Ltd. No. T. 324, and who were elected to the committee at election held on 26-11-1981, have now come to this Court aggrieved by Ext. P2 order of the 5th respondent, the Assistant Registrar of Cooperative Societies (Audit), Chirayinkil, who has by his order dated 16-2-1983 declared that the election held on 26-11-1981 was illegal and void ab initio, and, therefore, set aside, and Ext. P3 judgment dated 23-4-1983 by the 4th respondent, the Kerala Cooperative Tribunal, Trivandrum confirming Ext. P2 order. Exts. P2 and P3 order and judgment rest on the finding that the election held was ab initio invalid and illegal vitiated by the failure to comply with R.35(1) of the Kerala Cooperative Societies Rules, 1969 (the 'Rules') in as much as persons admitted to the membership of the Bank in violation of the provisions contained in R.26 of the Rules were permitted to vote at the election.

(2.) The counsel for the petitioners submitted that only 9 members were admitted to the membership of the Bank; within the prohibited period and even if they did not vote at the general meeting it would have had no impact on the result of the election as the petitioners had won the election by overwhelming majority. He also faintly attempted to argue that in terms of the provisions contained in R.28 and 35(1) all persons admitted to the membership of the Bank prior to 30 days of the date fixed for the poll would be entitled to cast the vote. As the requirements in R.26 are mandatory in character, and that position admits of no doubt I reject the contention of the counsel for the petitioners that inclusion of persons in violation of the provisions of R.26, and allowing such persons to exercise the right of vote did not vitiate the election held on the basis of such list of members. The principles laid down by this Court in Thankappan and others v. Cooperative Tribunal and others ( 1979 KLT 528 ) would squarely apply to this case.

(3.) Apart from the ground that the electoral roll had on it members, who were enrolled during the prohibited period under R.26 of the Rules, and they had also cast votes in the election, another point raised by respondents 1 and 2, found favour with the Arbitrator and the Tribunal, was that the date on which the nomination papers were required to be filed was not seven clear days prior to the date fixed for the election as required under R.35(3)(a)(iii) of the Rules. This provision again being a mandatory provision, any breach of the provision would render the election held pursuant to that intimation invalid. In this case Ext. P1 intimation was issued by the returning officer on 2-11-1981 and in clause (iv) thereof it has been stated that the nomination papers shall be received from 11 A. M. till 4 P. M. on 19-11-1981. In clause (8) it is stated that the election to the committee would start at 9 A. M. and close at 5 P. M. on 26-11-1981. The short question for decision is whether this allows seven clear days before the date fixed for the election. The submission made by the counsel for the petitioners is that even if either the 19th, on which date nomination papers were to be filed, or the 26th on which date the polling was to take place was excluded, there would be seven days to fulfill the condition contained in R.35(3)(a)(iii) of the Rules. I find it difficult to agree with this reasoning. It is well settled that where the statute provides for the exclusion of certain number of clear days it means that those days would be fully excluded; as day is a space of time between two successive midnights, and in computing it as a period of time, law does not take into consideration fractions of two days in order to make up one complete day. When an act is required by law to be done within a number of days before an event, the day on which the particular event occurs, has to be excluded. (See I. M. Lall v. Gopal Singh AIR 1963 Punjab 378). In Wharton's Law Lexicon, 14th edition page 202 it has been stated that "if a certain number of clear days be given for the doing of any act, the time is to be reckoned excluding the first day as well as the last". (Extracted at page 412 of Law. Lexicon by Venkataramaiya).