The court upheld the validity of the bye-law requiring a delegate to be a director of the affiliated society to vote in the election, interpreting it in conjunction with S.21(2) of the Act.

1. The petitioner in OP. No. 5206 of 1984 challenged Ext. P7(a) proceedings of the 2nd respondent-Deputy Registrar of Co-operative Societies (Audit) Ernakulam, who was the returning officer in respect of election to the Board of Directors of the Kerala State Co-operative Rubber Marketing Federation Ltd. No. 4331 (hereinafter called 'Federation').

2. In terms of Clause.14 of the bye-laws of the 1st respondent-Federation a delegate who could exercise vote in the election to the Board of Directors of the Federation should be a director of the affiliated society. The appellant-petitioner has no case that he is one of the directors of the society of which he is a member. It is the admitted fact that during the material time, he was only a member of that society.

3. It is for the reason that the appellant-petitioner was only a member, not a director of the society, in terms of Clause.14 of the bye-laws of the Federation the returning officer rejected the appellant-petitioner's nomination to be a delegate. In support of his contention the appellant-petitioner submitted that Clause.14 of the bye-laws of the Federation is clearly ultra vires the provisions of the Kerala Co-operative Societies Act. S.21(2) of the Act reads as follows:

"21. Manner of exercising vote.

(2) Notwithstanding anything contained in sub-section (1). a society or corporation or a statutory or nonstatutory Board, Committee or other body of persons which is a member of another society may, subject to any rules made under this Act, appoint one of its members to vote on its behalf in the affairs of that other society."

It may be noticed that the general rule as provided in sub-section (1) of S.21 of the Act is that every member of the society shall exercise his vote in person. What is contained in sub-section (2) is really in the nature of exception which could not be treated as the 'rule'. The counsel submitted that in the absence of any rule made under the Act providing a different mode of voting, any member should have been considered as eligible for voting despite the fact that the bye-laws of the Federation laid down that it was only a director of the society who would be entitled to be nominated. It is true that the sub-section enabled any member of the society to vote on behalf of the society. There is. however, no bar against another society to which the society is affiliated providing a provision that among its members it is only a member who is a director of this society, that would be eligible to vote. The election was to be conducted, and had been conducted in accordance with that bye-law. This was not an election to the Board of one of the societies affiliated to the Federation; on the contrary this was an election to the Committee of the Federation itself. The byelaws of the Federation lay down the qualification of the delegate of an affiliated society that could exercise vote at the election, representing the society. That qualification is applicable to all the affiliated societies uniformly and the appellant petitioner is not entitled to claim an exception for his being permitted to exercise vote at the election without being a director of the society of which he was only a member.

4. It has also to be noted that the affiliation of the society which the appellant petitioner claims to represent at the election, was subject to and in terms of the byelaws of the Federation. The society of which the appellant petitioner was a member, could not claim membership of the Federation, subscribing to its byelaws, and at the same time claim a privilege not to be bound by one of its byelaws which lays down that it is only a director, not a member of an affiliated society that would be entitled to cast votes at the election to its Board of Directors. S.21 of the Act, in our opinion, has to be read and understood to mean that the minimum requirement for voting on behalf of the society is that he should be a member of the society. It might, however, be open to