IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 17820 of 2008(U) -------------------------- PETITIONER(S): ----------------------- A.E.JANARDHANAN, MALANKARA HOUSE, EACHOME P.O., WAYANAD. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENT(S): -------------------------- 1. THE STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWERS, PALAYAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE WAYANAD DISTRICT CO-OPERATIVE BANK LTD.NO.4357, REPRESENTED BY ITS SECRETARY. ADV. SRI.MILLU DANDAPANI FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009,ALONG WITH WPC. NO.18410 OF 2008 AND CONNECTED CASES THE COURT ON 06/01/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.17820/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE RESOLUTION NO.III DT. 28.1.2005 EACHOME SERVICE CO-OPERATIVE BANK. P2:- COPY OF THE NOTIFICATION NO.E(1)534/08/SECE DT. 21.5.08 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE PROCEEDINGS OF THE GENERAL BODY MEETING HELD ON 3.12.05. P4:- COPY OF THE ORDINANCE NO.62/07 OF THE KERALA CO-OPERATIVE SOCIETIES (AMENDMENT) ORDINANCE, 2007. P5:- COPY OF THE ORDER NO.CB(3)59238/07 DT. 9.4.08 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE FINAL VOTERS LIST OF THE 3RD RESPONDENT DT. 9.6.08. /TRUE COPY/ P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.17820, 17513, 17694, 18257, 18410, 18651 & 21248 OF 2008 ------------------------------------------- Dated this the 6th day of January, 2009 JUDGMENT “C.R.” W.P(C).17820/08 is filed by a member of a service co- operative bank, who, as a delegate, was on the elected committee of the Wayanad District Co-operative Bank, hereinafter, the “Bank”, for short. The State Co-operative Election Commission, the “Commission”, for short, hereinafter, issued notification dated 21.5.2008 for election to the committee of the Bank. That notification is under challenge on the ground that the delimitation of constituencies made in that notification is ultravires the Bye-laws and is, hence, ultravires the Kerala Co- operative Societies Act, 1969, hereinafter, the “Act”, for short and Kerala Co-operative societies Rules, 1969, hereinafter, the “Rules”, for short. 2. Ext.P3 amended Bye-laws would show that there are to be 10 members in the Board of Directors, three of whom are WPC.17820/08 & co. cases Page numbers Government nominees. Of the remaining 7, one post is reserved for SC/ST, to be elected from among the delegates of the affiliated societies and another seat reserved for a woman from among the delegates of affiliated societies. The remaining 5 are governed by clauses 1 (i) and 1 (ii) of Bye-law No.25, as evidenced by Ext.P3. Sub clause (ii) of clause 25(1) of the Bye- laws provides that two Directors are to be elected from among the delegates of other affiliated societies other than Primary Agricultural Credit Societies, hereinafter, “PAC Societies”, for short. The voting rights of members other than PAC Societies no more survive the amendment of the Act as per Ordinance 62/07, the vires of which was upheld by this Court. Though the rights of Urban Co-operative Banks also seized by that amendment, that is irrelevant for the case in hand, because, there is no Urban Co-operative Bank in Wayanad. 3. By the operation of Ordinance 62/07, clause 25 1(ii) of the Bye-law became redundant and contrary to the Act and therefore, the 5 seats had to be distributed within the electoral WPC.17820/08 & co. cases Page numbers college. The voting rights having, thus, been confined to PAC Societies, the seats other than those for Government nominees have to be necessarily filled up only by persons who are delegates from the affiliated PAC Societies. It is insufficient that one is merely a delegate of an affiliated society. One has to be the delegate of a society falling within the electoral college. 4. Even in so far as seats reserved for women and SC/ST communities are concerned, the earmarking in sub clauses (iii) and (iv) of clause 1 of Bye-law No.25 has also to be understood as a reservation confined to be only from among the delegates of the affiliated PAC Societies, because, to be a candidate, one must belong to the electoral college. Therefore, a woman aspiring for the seat reserved under clause 1 (iii) or a member of an SC/ST community aspiring for the seat reserved under clause 1 (iv) has to be a delegate of an affiliated PAC Society. Therefore, even those classes have to get confined to the delegates coming from the PAC Societies. WPC.17820/08 & co. cases Page numbers 5. Beyond all this, is the requirement as to how the total number of 5 seats falling under clauses 1 (i) and 1 (ii) of Bye-law No.25, as it now stands, would have to be governed. After Ordinance 62/07, the Bye-laws have not been amended to make it in consonance with it. Not only that, the Bye-laws do not provide for delimitation of wards on any basis. In issuing Ext.P2, the Commission, apparently acting on a decision in that regard by the Registrar, has taken all the 5 vacancies falling under sub clauses (i) and (ii) into a composite category and has earmarked one for Sultan battery taluk, two for Mananthavady taluk and two for Vythiri taluk. That delimitation on geographical basis is something that is not provided for at all in the Bye-laws. I may profitably refer to the decision of this Court in Mathai v. State Co-operative Election Commission [2007 (2) KLT 789], laying down that it is not for the committee of a society to make any delimitation of wards and that could be done only by the General Body. I am in complete agreement with the law stated in that precedent. That decision essentially rests on the salutary principle that the General Body is the final WPC.17820/08 & co. cases Page numbers authority in a society as provided in Section 27 of the Act. The Act, the Rules or the Bye-laws do not provide any power on the committee to amend the Bye-laws and thereby provide delimitation of the electoral college into different wards. 6. It is the unsurmountable position that the Act does not contain any provision whereby the Registrar is empowered to issue any such decision delimiting the constituencies, because the Registrar does not have the power to amend the Bye-laws. All that the Registrar is empowered to, is to approve an amendment made to the Bye-laws, by the General Body, thereby to ensure that the amendment by the General Body is in accordance with law and not in contradiction to the provisions of the Act and Rules. That power does not extend to any power to delimit constituencies, either on geographical or any other basis, within the area of operation of the society, or otherwise tinker with the electoral college. 7. For the aforesaid reasons, Ext.P2 notification is bad. WPC.17820/08 & co. cases Page numbers 8. The writ petitions, other than W.P(C).17820/08 and which are captioned in this judgment, raise different questions of alleged, unauthorised inclusions in or illegal exclusions from the voters list etc. Those are germane only to an electoral process. After having found that the notification dated 21.5.2008 delimiting the constituencies is contrary to the Act and Rules and without authority, the questions raised in those writ petitions are left open. In the result, W.P(C).17820/08 is allowed, quashing the election notification dated 21.5.2008, which is Ext.P2 in that writ petition. The electoral process carried provisionally on the strength of the interim orders in these cases and the result of which is yet to be declared, will stand discharged by the force of this judgment. It is further ordered that the administrative committee in office will continue for a further period of six months or earlier, within which time, the election to the committee of the Bank shall be held in accordance with law. This shall be done calling for a General Body, following this WPC.17820/08 & co. cases Page numbers judgment and placing for consideration of General Body, proposals for amending the Bye-laws of the society in tune with the provisions of the amendment brought to the Act by Ordinance 62/07. Such amendment could not have been had until now, lawfully, pending these writ petitions, by reason of the fact that the election notification held the field as of now, until it is quashed hereby. Therefore, any amendment to the Bye-laws shall be approved only to be effective from the date on which it is passed by the General Body, following this judgment. The administrative committee in office and the Registrar of Co- operative Societies, as also the State Co-operative Election Commission, are directed to ensure that the declarations and directions contained herein are worked out in terms of this judgment at the earliest, so that the time limit for assumption of office of the new committee is adhered to. The writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.