Non-compliance with mandatory provisions of R.35(3)(a) of the Co-operative Societies Rules, 1969 is sufficient to invalidate an election, regardless of the question of material prejudice.

1. An election to the Governing Body of a co-operative society by name "Thuravoor Padinjattumkara Co-operative Society Ltd., No. 2727", has given rise to this original petition. The petitioners are the members elected in the election held on 26-2-1977. The fifth respondent herein, who is a defeated candidate in the same election, challenged the election by a petition under S.69 of the O.P. Kerala Co-operative Societies Act, 1969 (shortly the Act) before the third respondent, and, Ext. P1 is the election petition. Ext. P2 is the copy of the written statement filed in that case. The third respondent passed Ext. P3 award setting aside the election. The petitioners challenged the correctness of Ext. P3 order before the first respondent. The first respondent passed Ext. P5 order, confirming Ext. P3. Thus, the election was set aside by the competent authorities constituted under the Act. The petitioners are challenging the validity of Exts. P3 and P5.

2. Though, in the election petition, several grounds were urged for challenging the validity of the election, the only question that was raised before me was, whether non-compliance with R.35 (3) (a) of the Co-operative Societies Rules, 1969, (briefly the Rules) is a sufficient ground to invalidate the entire election.

3. The facts necessary to decide the question of law raised before me are short and are not in dispute The final list of the members of the society was drawn on 5-2-1977. The notice under R.35 (3) (a) was issued on 29-1-1977. It is common case that no notice was served on four members of the Society. The first respondent took the view that, though the notices were issued prior to the preparation of the final list of members, that irregularity may not invalidate the entire election, and, held that the non-service of notices on four members, however, is an omission, which would invalidate the election. R.35 contains a number of sub-rules and the object of the rule is to prescribe the procedure regarding conduct of the election to the Committee of Co-operative Societies. R.35(3) (a), which is the rule that strictly arises for consideration in this case, may be read:

"3. (a) The Returning Officer shall send intimation regarding the details of the election of the members of the Committee to all members included in the final list of the voters to vote at the election of the committee either in person and obtain their full signature in token of having received the same or by post under certificate of posting. A copy of the intimation shall also be affixed on the notice board of the Head Office and the branches, if any, of the society. The intimation shall contain the following particulars:

(i) The number of vacancies to be filled up by election;

(ii) Any area or constituency that is specified in the byelaws from which members are to be elected;

(iii) The date on which, the place at which and the hours between which nomination paper shall be filed by the contesting candidate or by his proposer or seconder such dates not being less than seven clear days before the dates fixed for the election;

(iv) the date and hour when the nomination papers will be scrutinised;

(v) the date on which, the place at which and the hours between which, polling will take place."

4. The contention urged by the petitioners is that, non-compliance with R.35(3)(a) cannot invalidate the election unless it is shown that the omission to issue notice to four members has materially affected the results of the election. It will be relevant in this context to examine briefly the salient features of R.35. The rule starts with the statement that, 'the election of the members of the committee of a society shall be conducted in the following manner'. Since the expression used is "shall", the normal inference to be drawn is that the provisions are mandatory. Sub-rule (1) deals with the meeting of the existing committee for fixing the date, time and place for the conduct of the election of the committee. Sub-rule