IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 7295 of 2009(F) --------------------------------------- PETITIONER(S): ------------------------ A.E.JANARDHANAN, MALANKARA HOUSE, EACHOME P.O., WAYANAD. BY ADVS. SRI.B.S.SWATHY KUMAR, SMT.P.A.ANITHA. 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. R1 & R2 BY SPL. GOVERNMENT PLEADER SMT. A.G. ANEETHA R3 BY ADV. MR.MILLU DANDAPANI, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7295/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION NO.E(1)/534/08/SCEC DTD. 21/05/2008 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF THE RELEVANT PORTION OF THE BYE-LAW OF THE 3RD RESPONDENT. P3: COPY OF THE ORDER NO.CB(3)59238/2007 DTD. 18/04/2008 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE NOTICE DTD. 28/11/2008 OF THE 3RD RESPONDENT. P5: COPY OF THE BYE-LAW AMENDMENT OF THE 2ND RESPONDENT. P6: COPY OF COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. NIL. P7: COPY OF THE ELECTION NOTIFICATION PUBLISHED IN DESABHIMANI DAILY 3/3/2009. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE REGISTERED AMENDED BYE-LAW. R2(B): COPY OF THE PETITION DTD. 18/12/2008. R3(1): COPY OF THE CERTIFICATE OF AMENDMENT DTD. 22/01/2009 APPROVED AND ISSUED BY THE 2ND RESPONDENT ALONG WITH COVERING LETTER NO.CB(4) 59903/08 DTD. 22/01/2009 TO THE 3RD RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. --------------------- W.P.(C).No.7295 OF 2009 ------------------------ Dated this the 7th day of August, 2009. JUDGMENT The main challenge in this writ petition is against Ext.P7, a notification issued by the first respondent for election to the Board of Directors of the 3rd respondent. 2. Briefly stated, the facts of the case are that, as per clause 22 of Ext.P2 bye-laws of the 3rd respondent, the Board of Directors of the Bank will consist of 10 members, who are to be elected in the manner as indicated therein. Subsequently, Ext.P3 order was issued by the Registrar of Co-operative Society providing that from Sultan Battery one shall be elected and from Mananthavady and Vythiri Taluks, two each shall be elected to the Board of Directors. Following Ext.P3, Ext.P1 election notification was issued by the first respondent. WP(c).No.7295/09 2 3. At that stage the petitioner filed W.P(c).No.17820/08 before this court challenging Ext.P1. After hearing all parties, the writ petition was disposed of by judgment dated 6.1.2009. Last paragraph of the judgment reads as under. In the result, WP(c).No.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 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 WP(c).No.7295/09 3 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." 4. A reading of the aforesaid paragraph of the judgment shows that the following are the conclusions/directions issued; I. That until then any amendment to the bye laws was not lawfully effected in the light of the provisions of ordinance 62/07. ii. That following the judgment, General Body of the Society shall be called and proposal for amending the bye laws in tune with the provisions of the amendment brought about by the ordinance 62/07 shall be placed before the General Body. iii. That any amendment of the bye laws shall be approved to be effective from the date on which it is passed by the General Body, following the judgment. WP(c).No.7295/09 4 5. The admitted position in this writ petition is that subsequent to 6.1.2009, when the aforesaid judgment was rendered, General Body was not convened. 6. Petitioner submits that, prior to the aforesaid judgment, on 18.12.2008 a General Body was convened to consider the proposal for amendment of the bye laws as reflected in Ext.P5 agenda. According to the petitioner, although 31 members attended the said general body meeting, 13 of them voted against the resolutions, but without recording what actually transpired in the General Body Meeting, minutes were drawn up as if the resolutions were carried unanimously and sent for the approval of Registrar. It is stated that on 18.12.2008 itself, all the 13 persons who objected to the resolution, submitted Ext.P6 complaint to the Registrar and approached this court by filing WP(c).No.2370/09. That writ petition was disposed of by judgment dated 22.1.2009, which reads as follows; “The 13 petitioners state that they are members of the second respondent. They oppose an WP(c).No.7295/09 5 amendment to the bye-laws of the second respondent. That proposal is, following Ext.P3, stated to be pending before the first respondent Registrar for approval. If that be so, the Registrar will give an opportunity of hearing to the petitioners also in relation to that matter. This is more particularly because, this court had already issued a judgment in relation to the election to the second respondent in WP(c).No.17820 of 2008. The learned special Government Pleader for Co-operation is also right in stating that the authorities will not take a decision without taking into consideration that judgment. Writ petition is ordered accordingly, however directing that, the petitioners may mark their appearance before the first respondent through appropriate authorized person within two weeks from now, so that the first respondent need not issue notice to all the 13 petitioners.” 7. It is stated that without complying with the directions in the judgment dated 22.1.2009 in WP(c).No.2370/09, Ext.R2 (a) was issued by the Registrar, which according to the petitioner is a fabricated and predated document. By this proceedings the amendment which is purported to have been passed on 18.12.2008, a copy of which is Ext.R3(1), was approved by the Registrar and the certificate of registration of the amended bye laws were also issued. It is stated that on the WP(c).No.7295/09 6 strength of the above, Ext.P7 election notification was issued by the first respondent on 3.3.2009 and this writ petition was filed on 5.3.2009 seeking to quash Ext.P7. At the stage of admission this court passed an interim order dated 11.3.2009 directing that all further proceedings pursuant to Ext.P7 will stand stayed until further orders. 8. The contention raised by the counsel for the petitioner is that in the light of the judgment in WP(c).No.17820/2008, any amendment to the bye laws, could have been carried out only by convening a general body subsequent to 6.1.2009, and that admittedly such a general body was not convened. Therefore it is contended that, the bye-laws even as of now is Ext.P2 and that Ext.P7 election notification, on the face of it, is against the bye laws and is illegal. Further it is contended that this court by judgment in WP(c).No.2370/09 directed that the petitioners therein should also be heard before the amendment is registered and that the Registrar issued Ext.R2 (a) proceedings registering the amendment without complying WP(c).No.7295/09 7 with the directions contained in the judgment. Yet another plea that is raised is that, in any event the amendment that is now registered as per Ext.R3(1) is vary substantially with what is shown in Ext.P5 agenda and for that reason also, the amendment is illegal. 9. The learned Special Government Pleader, who is duly supported by the learned Senior Counsel appearing for the 3rd respondent, submits that on 18.12.2008, General Body meeting of the Society was convened for considering Ext.P5 proposals for amendment of the bye-laws. It is stated that in the meeting, the resolution amending the bye laws was passed unanimously as is seen in Ext.R3(1) and that these were sent for registration by the Registrar of the Co-operative Societies. It is stated that before the judgment in WP(c).NO.2370/09 was communicated, the Registrar, strictly in compliance with the provisions of the Act and Rules, considered the request for registration and granted registration. It is stated that in view of this, Ext.P7 election notification issued on 31.3.2009, was WP(c).No.7295/09 8 valid. 10. In my view, among the several contentions raised by the counsel for the petitioner, for the disposal of this writ petition, I need only to consider the validity of Ext.P7 notification in the light of the directions of this court in the judgment in WP(c).No.17820/08. As I have already noticed, in the operative portion of the judgment the learned judge has accepted the fact that an amendment to the bye-laws could not have been lawfully effected until then. On this basis it has been directed that, following the judgment, the General Body shall be called and that proposal for amendment to the Bye- laws shall be placed for the consideration of the General Body. It was further directed that approval of any amendment to the bye laws can only be effected from the date on which it is passed by the General Body. Although this judgment was rendered on 6.1.2009, after hearing the learned Government Pleader representing the Registrar of Co-operative Societies and also the counsel for the Bank, nobody has a case that WP(c).No.7295/09 9 subsequent to the aforesaid judgment, any General Body Meeting was held. If that be so, the Registrar could not have been granted registration to an amendment, which is purported to have been passed in the General Body Meeting that was held on 18.12.2008. Necessarily, therefore the registration granted to the amendment has to be held invalid and illegal. 11. True there is no specific challenge to Ext.R2(a) proceedings and the certificate issued. However having regard to the fact that the registration was granted contrary to the specific direction in the judgment in WP(c).No.17820/08, this court will be justified in ignoring such an illegal registration of the amendment even in the absence of any specific challenge against such orders. {See in this connection the Apex Court judgment in Bharathidarsan University V. AICTE (2001(8) SCC 676)}. Necessarily, the bye laws of the society in force is as it is reflected in Ext.P2 and if so Ext.P7 election notification is at variance with the bye laws of the society and WP(c).No.7295/09 10 for that reason Ext.P7 has to be set aside. 12. Learned Sr. Counsel appearing for the Society submits that since as a matter of fact meeting was held on 18.12.2008 and amendment was passed, the directions in the judgment in WP(c).No.17826/09 about which reference has already been made in the earlier portion of this judgment has to be understood in the light of the amendment that was passed by the General Body. In my view, a reading of the above judgment does not admit this kind of an interpretation. If at all the society or anybody had a case that the judgment is erroneous for any reason, it is up to them to have sought necessary review or modification of the judgment which has not been done till date. Therefore, at this distance of time, I do not think that it is open to the Society to raise any such contention. 13. At this stage the learned Sr. counsel for the 3rd respondent prays that this writ petition may be placed before the learned single judge who passed the judgment in WP(c).No.7295/09 11 WP(c).No.17820/08. In my view, such a request can have justification, provided there was some ambiguity in the judgment. In my view, there is no such situation deserving acceptance of the request made. For the aforesaid reasons Ext.P7 election notification issued by the first respondent will stand set aside and the writ petition is disposed of directing the respondent to conduct election to the Board of Directors of the society in compliance with the directions contained in the judgment in WP(c). No.17820/08. The whole process shall be completed as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of the judgment. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.7295/09 12