P RAJENDRAN Vs. STATE CO OPERATIVE ELECTION

JUDGEMENT

(1.) The appellant is the petitioner in O.P. No.16199 of 2002 which was dismissed by the learned Single Judge. The respondents herein are the respondents in the said Original Petition.

(2.) The dispute relates to election to the Managing Committee of the Kumaramputhoor Service Cooperative Bank Limited No.373 (hereinafter referred to as "the Bank"). As per resolution dated 4.4.2002 of the Administrative Committee of the Bank it was resolved to conduct election to the Managing Committee of the Bank on 9.6.2002. The said resolution was sent to the State Cooperative Election Commission (first respondent) through the Joint Registrar of Cooperative Societies (General), Palakkad (second respondent). As per Ext. P1 election notification dated 27.4.2002 issued by the first respondent, the election was scheduled to be held on 9.6.2002. The date for filing the nomination papers was 27.5.2002, the date for scrutiny of the nomination papers was 28.5.2002 and the date for withdrawal of the nomination papers was 29.5.2002. The preliminary list of active members eligible to vote in the election was to be published on 13.5.2002 and the objections to the preliminary voters' list was to be filed before 5 p.m. on 17.5.2002 and the final voters' list was to be published on 18.5.2002. A preliminary voters' list was published by the Electoral Officer (4th respondent) on 13.5.2002. But, before preparing and publishing the final voters' list, the first respondent issued Ext. P2 Circular dated 14.5.2002 directing that in view of the coming into force of the Kerala Cooperative Societies (Amendment) Ordinance, 2002 (Ordinance No.6/2002) on 4.5.2002, elections to Cooperative Societies shall be held only after including all eligible members in the preliminary/final voters' list published on or after 4.5.2002. It was pointed out in Ext. P2 that as per the said Ordinance, not only the active members but all the members of the Society were given the right to vote. It was also directed that the Electoral Officers should immediately stop the election proceedings in the case of Societies where preliminary/final voters' list was published on or after 4.5.2002 including only active members in such list. It was further directed that fresh date for conducting the election should be decided by the Societies in terms of R.35A(4) of the Kerala Cooperative Societies Rules and the resolution should be sent to the State Cooperative Election Commission through the Joint Registrar (General) concerned. Based on Ext. P2 Circular of the first respondent, the 4th respondent published Ext. P3 notice dated 19.5.2002 stating that proceedings to conduct election to the Managing Committee of the Bank on 9.6.2002 were stopped until further orders. Thereafter, the Administrative Committee of the Bank met on 11.6.2002 and passed a fresh resolution (Ext. P4) to conduct the election on 30.6.2002. The said resolution of the Administrative Committee was forwarded to the first respondent through the Joint Registrar of Cooperative Societies, Palakkad. In Ext. P4 resolution the Administrative Committee took the stand that Ordinance No.6 of 2002 was not applicable to the Bank as the election proceedings had already commenced and that the election proceedings should be continued from the stage where it was stopped and the election should be held on 30.6.2002. Alleging that the respondents were not taking any effective action to conduct the election as per Ext. P4 resolution of the Administrative Committee, the petitioner who is the convener of the Administrative Committee filed the Original Petition on 17.6.2002 praying to quash Exts.P2 and P3 and to direct respondents 1, 3 and 4 to conduct the election on 30.6.2002 as per Ext. P4 resolution. Along with the Original Petition C.M.P. No.27499 of 2002 was filed praying for stay of all further proceedings pursuant to Exts.P2 and P3. Though notice was ordered on the Original Petition and the C.M.P. on 25.6.2002, no interim order was passed by the court. While issuing notice to the respondents, the court directed the petitioner to implead the affected parties in a representative capacity. However, no step was taken to implead the affected parties. The Original Petition was finally heard and was dismissed on 21.11.2002.

(3.) In the impugned judgment, the learned Single Judge has referred to the argument of the learned counsel for the petitioner that as on the date of publication of the preliminary voters' list, the amendment to S.20 of the Kerala Cooperative Societies Act (hereinafter referred to as "the Act") conferring voting right on every member of a Society had not come into effect and as such the election should have been proceeded with, based on the unamended provision. Reference is also made to the argument that once the process of election has commenced, the Electoral Officer could not have stopped the election for the purpose of giving effect to the Circular issued by the first respondent, Election Commission. Reference is also made to the contention that the Election Commission has no jurisdiction to issue any such direction unless the Ordinance or the Act is given retrospective effect. The learned Single Judge observed that the contention was not without force. However, since the election was scheduled to be conducted on 9.6.2002 and since that date was already over, the learned Single Judge held that the process of election should be started afresh on the basis of a fresh resolution to be passed rescheduling the date of election and other processes. According to the learned Single Judge, in view of the amendment already brought into force, every member is entitled to cast his vote in the election to be held pursuant to any resolution rescheduling the date of election. Though the counsel for the petitioner, relying on the decision in George v. Joint Registrar ( 1985 KLT 836 ), contended that the process of election should continue from the date on which the resolution had already been passed, the learned Single Judge pointed out that the above mentioned case was a case where the polling was adjourned by the Returning Officer, whereas, in the present case only the preliminary voters' list was published and no other steps were taken. Hence the learned Single Judge held that it was not just and proper to deny the voting right to persons who were entitled to vote as per the amended provision when the Legislature in its wisdom decided to give such a right to all the members of the Bank. According to the learned Single Judge, if the election is to be held based on the provisions as it stood at the time of preparing the electoral roll, it will be a denial of the right conferred on the members of the Society. The learned Single Judge rejected the contention that the election should be held as per the preexisting law. According to the learned Single Judge, the question had become academic so long as the election could not be held as fixed earlier. After holding that the Original Petition had become infructuous, the learned Single Judge directed the Administrative Committee to proceed to conduct the election on or before 28.12.2002 and the State Cooperative Election Commission was directed to issue necessary notification on receipt of the resolution of the Administrative Committee.