IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 WP(C).No. 2871 of 2009(P) ------------------------- PETITIONER(S): --------------- 1. T.V.RAVEENDRAN, 57 YEARS, S/O.GOPALAN NAMBIAR, MEMBER NO.A 4546, THE MATTANUR CO.OP. RURAL BANK LTD.NO.F.1228, MATTANNUR, R/AT.RAREERAM A.K.G. NAGAR, PAZHASY AMSOM, MATTANUR, KANNUR. 2. K.MUHAMMED ALI, 44 YEARS, S/O.UMMER HAJI MEMBER NO.A.19799, THE MATTANUR CO.OP.RURAL BANK LTD.NO.F.1228, MATTANNUR, R/AT.SUBAIDA MANSIL, KUMMANAM, POST ELAMPARA, MATTANNUR, KANNUR. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.J.R.PREM NAVAZ SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- 1. KERALA STATE CO.OP.ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO.OP.SOCIETIES (GENERAL), KANNUR. 3. RETURNING OFFICER TO THE ELECTION TO THE MATTANUR CO.OP.RURAL BANK LTD.NO.F.1228, MATTANUR UNIT, INSPECTOR, IRRITTI, OFFICE OF THE ASSISTANT REGISTRAR OF SOCIETIES, KOOTHUPARAMBA). 4. MATTANUR CO.OP.RURAL BANK LTD.NO.F.1228, MATTANNUR, REP. BY ITS SECRETARY. R1, R2 BY GOVT. PLEADER SRI.I.V.PRAMOD R4 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON 21/10/2009 DELIVERED THE FOLLOWING: APPENDIX IN WPC.2871/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE NOTIFICATION DATED 1.1.2009 PUBLISHED IN VEEKSHANAM DAILY DATED 6.1.2009. EXT.P2: TRUE COPY OF THE AMENDMENT TO THE BYELAWS OF THE MATTANUR CO-OPERATIVE RURAL BANK. EXT.P3: TRUE COPY OF FORM 36 NOMINATION PAPER SUBMITTED BY THE 2ND PETITIONER. RESPONDENT'S EXHIBITS: EXT.R4(a): TRUE COPY OF THE ELECTION NOTIFICATION NO.E(2)/ 2415/08/SCEC DATED 1.1.2009. EXT.R4(b): TRUE COPY OF THE FINAL LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER ON 21.1.2009. EXT.R4(c): TRUE COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY. EXT.R4(d): TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY. EXT.R4(e): TRUE COPY OF THE COMMUNICATION NO.4161/06/0 DATED 2.11.2006. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.2871 OF 2009 ------------------------------------------- Dated this the 21st day of October, 2009 JUDGMENT 1.The State Co-operative Election Commission, hereinafter referred to as the 'Commission', notified election to the committee of the 4th respondent, a co-operative bank, of which, the petitioners are members. The petitioners' nominations were rejected on the ground that either the proposer or the seconder or both of them lacked the qualifications mentioned in clause 22 (B) of the byelaws of the society. Petitioners seek a declaration that no election has been validly held at all. According to them, 11 out of 24 nominations were rejected and one candidate withdrew, thereby paving way for the continuance of the majority of the members of the existing managing committee declared elected as unopposed. They seek a further declaration that the amendment brought to the byelaws, as evidenced by Ext.P2, are void, inoperative and unenforcible since the stipulations contained therein regarding certain qualifications of the WPC.2871/09 Page numbers candidate's proposers and seconders are contrary to the statutory provisions contained in the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the 'Act' and the Kerala Co-operative Societies Rules, 1969, hereinafter, the 'Rules', for short. They seek issuance of a writ of mandamus to the Commission to notify the election afresh from the stage of acceptance of nomination papers without insisting on conditions in Ext.P2, particularly to proposers and seconders, and to accept all valid nominations on such basis and then, to hold polling in accordance with law. They also seek a mandamus directing the Joint Registrar to desist from permitting the persons who claim elected unopposed, entering on office. 2.According to the petitioners, the amendment evidenced by Ext.P2 had been brought about secretly and without notifying it to the members or publishing it in the notice board of the society, as required by law. The petitioners state that on enquiry, they were furnished with the stipulations in the WPC.2871/09 Page numbers amended byelaws which were published on 5.1.2009, the previous day of publication of the notification. 3.The nomination of the first petitioner was rejected on the ground that neither the proposer nor the seconder of that nomination possess the qualification mentioned in clause 22 (B) of the amended byelaws. The nomination of the second petitioner was rejected on the ground that the seconder to that nomination did not have such qualification. The plea in that regard is that on the face of Rule 35A of the Rules, which provide that every nomination paper shall be signed by two members, whose names are included in the list of members and one of the members shall sign the form as proposer and the other as seconder for the nomination; there cannot be any further prescription by byelaws as to qualification for being a proposer of seconder other than the mere fact that they are persons whose names are included in the list of members. WPC.2871/09 Page numbers 4.The 4th respondent society has filed a counter affidavit, sworn to by the secretary of the society. Ext.R4(a) is the notification issued by the Commission under Rule 35A of the Rules on 6.1.2009. List of valid nominations was published on 20.1.2009, after considering the nominations submitted on 19.1.2009 and after the time for withdrawal of nomination, final list was published by the Returning Officer on 21.1.2009 [Ext.R4(b)]. According to the 4th respondent, when this writ petition was filed on 27.1.2009, the publication of the final list of candidates had taken place and there was no question of any further election by polling since there was no contest. The 4th respondent, accordingly, impeaches the sustainability of this writ petition on the ground that those persons are entitled to be treated as elected in terms of Ext.R4(b) declaration. 5. It is specifically pleaded by the 4th respondent in para 5 of its counter affidavit that the amendment to the byelaws cannot be impeached in writ jurisdiction and, still further, that the proposal for amending the byelaws to the impugned extent WPC.2871/09 Page numbers was notified for consideration in the General Body of the society in its meeting scheduled on 25.3.2006. Exts.R4(c) and R4(d) are the newspaper publications of the notices of that meeting. It is also pleaded that apart from paper publication, the proposal for such amendment was communicated to the members along with the annual report which contained the proposal for the amendment. Ext.R4(e) is produced to prove that the amendment was approved by the General Body and the said modifications to the byelaws were approved by the Joint Registrar and registered on 2.11.2006. It is pleaded in the counter affidavit that the minutes of the General Body Meeting will show the deliberations on the amendment in question and the approval given by the General Body to that amendment. It is further specifically contended in para 6 of the counter affidavit that the General Body of the society, for the co-operative year 2006-07, was convened after granting the registration of the impugned amendment as per Ext.R4(e) and that in the said meeting also, the approval and the registration of the amendment as aforesaid was brought to the WPC.2871/09 Page numbers notice of the General Body in that meeting held on 30.3.2007. With those pleadings in para 6, it is pointed out by the 4th respondent that the amendment is not only in order, but does not warrant interference by this Court on any count. 6. Section 12 of the Act provides that no amendment to any byelaws shall be valid unless such amendment has been registered under the Act. The grant of approval of amendment under Section 12 of the Act is a statutory function. Going by the pleadings as noticed above, the uncontroverted statement of the 4th respondent is that the amendments in question were brought in on the basis of the decision of the General Body in the year 2006 and that such amendment has been approved by the competent statutory authority. That decision, as of now, stands final. The said amendment to the byelaws, with the registration, makes the provisions which are incorporated into the byelaws, binding on all the members of the society. Therefore, any challenge to those byelaws, if at all, could necessarily be had only by recourse to statutory proceedings WPC.2871/09 Page numbers against the decision of the Joint Registrar granting approval to those amendments to the byelaws. The question whether Rule 35A of the Rules exclude such an amendment is left unanswered in this writ petition because the plea that the amendment to the byelaws has been made in contravention of the Act and Rules could be considered in a statutory challenge to the decision of the Joint Registrar granting registration. Once the competent authority has granted approval, any contradiction between the Act, Rules and byelaws would have to necessarily stand for a scrutiny, first, only by the statutory authorities and without exhausting those remedies, it is inappropriate to issue a writ in exercise of authority under Article 226 of the Constitution, interfering with the byelaws of a society, which is essentially, a non-statutory material. Not only that, the quality of the right of a person to be a member of a co-operative society also does not generate sufficient locus to insist on the issuance of a writ of certiorari or seek issuance of a writ of mandamus in relation to the byelaws of a co-operative society. WPC.2871/09 Page numbers 7.The petitioners do not have a case that the rejection of their nominations is not in terms of the byelaws. Their only plea is that the byelaws amendment referred in Ext.P2 was a secret exercise. They attempt to show that Ext.P2 is issued only on 5.1.2009, the date shown therein. This is not only repudiated, but it is pleaded that such amendment was brought in by the due process, way back in 2006 and that the said amendment has been approved by the competent authority. Ext.P2 is evidently only a further issuance of the true copy of the said amendment. Therefore, the petitioners are not entitled to challenge the correctness of the rejection of the nominations since their nominations have been rejected on the basis of the byelaws as it stood while the election was notified by the Commission. 8.Be that as it may, relying on the decision of the Apex Court in Veena Kumari Tandon v. Neelam Bhalla [(2007) 12 SCC 764], learned counsel for the petitioners argued that the provisions in the byelaws are contrary to the statutory WPC.2871/09 Page numbers provisions and inconsistency in that regard is a ground to interfere with the process. As already noted, the byelaws stand with approval of the statutory authority and parties have statutory modes to challenge such approvals. I do not find that as a ground to interfere in the matter in the light of what is stated in the preceding paragraphs. For the foregoing reasons, this writ petition is dismissed without prejudice to the right of the petitioners, if any, to challenge the amendment of the byelaws, in accordance with law. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.