RAMAKRISHNAN Vs. STATE CO-OPERATIVE ELECTION COMMISSION

JUDGEMENT

(1.) Among these writ petitions, WP(C).Nos.34708 and 35236 of 2016 are instituted challenging the order of the Government dated 15.10.2016 by which all societies which are affected by Sections 16A(1) and 19A of the Kerala Co-operative Societies Act ('the Act') are exempted from the purview of the said provisions retrospectively from 01.01.2016 till 14.02.2017. WP(C).No.32578 of 2016 is an earlier writ petition filed by the petitioner in WP(C).No.34708 of 2016 substantially for the same relief sought in WP(C).No.34708 of 2016 without incorporating a challenge against the order of the Government referred to above. The Exhibits in W.P.(C) No.34708 of 2016 are referred to in this judgment for convenience.

(2.) The facts relevant for adjudication of the issues raised in the writ petitions are the following: The petitioner in W.P.(C) No.35236 of 2016 is a co- operative society registered under the Act and the petitioner in the remaining writ petitions is a member of the fourth respondent co-operative society in WP(C).No.32578 of 2016, which is also a co-operative society registered under the Act. By virtue of Act 8 of 2013, two new provisions were introduced in the Act with effect from 14.02.2013 as Sections 16A and 19A. Among the said provisions, Section 16A provides that no member of a society is entitled to continue as a member of the society if he 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 and if he has not attended three consecutive general meetings of the society and such absence has not been condoned by the members in the general meeting and Section 19A of the Act provides that no member of a society shall exercise the right of a member unless he has attended the minimum required general body meeting and minimum level of services as may be prescribed. Immediately after the introduction of the aforesaid provisions in the statute, the Registrar of Co-operative Societies has reported to the Government that the societies have to prepare a register of members after ascertaining the eligibility of the members as provided for under Sections 16A(1) and 19A of the Act; that Section 16A does not provide for any time limit or exemption to societies where election process has commenced already under the provisions existed prior to the introduction of the aforesaid provisions and recommended the Government to exempt all societies which are affected by the operation of Sections 16A(1) and 19A of the Act for a period of one year from the date of commencement of Act 8 of 2013. On the said recommendation, as per Ext.P1 order, the Government exempted all societies which are affected by Sections 16A(1) and 19A of the Act for a period of one year from the date of commencement of Act 8 of 2013. The Kerala Co-operative Societies Rules ('the Rules') was also amended later to give effect to the newly introduced provisions in the Act by incorporating Rule 18A with effect from 26.11.2014. It is seen that even thereafter, the Registrar of Co-operative Societies has reported to the Government that though the Rules are amended as indicated above, by virtue of S.R.O.No.733/14 with effect from 26.11.2014, the societies have requested adequate time for implementation of the relevant provisions of the Act and the Rules by preparing the register of the members who are eligible to vote for conducting election to the Board of Directors and recommended the Government to extend the exemption granted as per Ext.P1 order retrospectively from 14.02.2014 to 31.12.2015. On the said recommendation, as per Ext.P2 order, the Government exempted all societies which are affected by Sections 16A(1) and 19A of the Act for the aforesaid period. It is seen that this Court had stayed Ext.P2 order in W.P.(C) No.17041 of 2015 on 08.06.2015 for a period of three months. Later, the said writ petition was referred to a Division Bench and then to a Full Bench along with a few other writ petitions involving issues relating to the implementation of the provisions contained in the newly introduced Sections 16A and 19A of the Act. The Full Bench in Pradeep v. Kerala State Co-operative Election Commission (2016 (3) KLT 551) has held that though Sections 16A and 19A were introduced with effect from 13.02.2013, the said provisions came into operation only on the introduction of Rule 18A of the Rules on 26.11.2014 and that therefore the eligibility of the members of the societies to cast vote has to be assessed with reference to the position as on the date of close of the co- operative year after commencement of Rule 18A, viz, 31.03.2015. It was also clarified by the Full Bench, in the light of the said finding, that election has to be conducted in accordance with the unamended provisions of the Act in societies where preliminary voters list/final voters list were published for election pursuant to notifications issued prior to 31.03.2015 and that election has to be conducted in accordance with the amended provisions of the Act in societies where the preliminary voters' list was published after 31.03.2015. It is seen that the Full Bench has not considered the challenge against Ext.P2 order in W.P.(C) No.17041 of 2015 on merits. Instead, the said writ petition was also remitted along with the remaining matters for decision to the learned Single Judge and it is seen that the same was disposed of later without adjudicating the issues raised therein, obviously, for, the petitioner therein did not pursue the challenge against Ext.P2 order. After the decision of the Full Bench referred to above, the Government have issued Ext.P3 order stating that it was brought to the notice of the Government that annual general body meeting could not be conducted in some societies for the last three years and above and some members of some other societies could not avail the minimum level of services provided for under Section 16A(1) of the Act and that the Government, therefore, is satisfied that it is necessary in public interest to extend the exemption granted as per Ext.P2 order for a further period upto 14.02.2017 retrospectively from 01.01.2016 to societies where annual general body meeting could not be conducted for the last three years and above and in case of societies where some of their members could not avail the minimum level of services as provided for under Section 16A(1) of the Act. Accordingly, as per the said order, the Government have accordingly exempted all societies which are affected by Sections 16A(1) and 19A of the Act for the said period. Ext.P3 is under challenge in these writ petitions.

(3.) Heard the learned counsel for the petitioners as also the learned Special Government Pleader.