IMPORTANT POINTS
• Rule 35A(4) assures the right to every eligible member regardless of number of shares he/she possesses.
• Every A class member of a society shall be eligible to vote and contest in the election if he has subscribed to the minimum share value as prescribed in the bye-laws.
• As the Election Commission issues an Election Notification, they must act in terms of Rule 35A(3) of the Kerala Co operative Societies Rules (KCS Rules) and incorporate the “area” and “constituency” as specified in the Bye-laws, from which the members are to be elected.

A question of some importance has been posed before this Court in this writ petition: whether the restrictive terms in the Bye-laws of a Society, as per which a member is mandated to acquire a minimum of ten shares to obtain qualification to contest in the elections to its Managing Committee, can obtain juristic imprimatur under the provisions of the Kerala Cooperative Societies Act and Rules (hereinafter referred to as “the KCS Act and Rules” for short).

2. The petitioner says that he is a member of the 4th respondent-Society and alleges that Ext.P5 Election notification, issued by the State Co-operative Election Commission, is illegal, since it allows all 'A' class members to contest in the ensuing elections to the Managing Committee of the said Society notified to be on 10.08.2019, contrary to Ext.P2 Bye-laws which unambiguously stipulates that only members who have acquired at least ten shares can do so. The petitioner asserts that he intends to file his nomination as a candidate and impugns Ext.P5 to the above extent; very interestingly, relying on a judgment of this Court in V.R.Bhaskran v. State of Kerala [2019 (3) KHC 935] in substantiation of his contentions.

3. I have heard Sri.Babu Joseph Kuruvathazha, learned counsel for the petitioner; Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the Election Commission and Smt.C.S.Sheeja, learned Senior Government Pleader.

4. As has been seen above, the singular issue placed for consideration of this Court by the petitioner is whether the notification of the Election Commission, which permits every 'A' class member, without restricting any one of them on the basis of number of shares, to contest in the elections is worthy of legal favour, when the Bye-laws of the Society specifies that every such member requires to acquire a minimum of ten shares to be qualified to do so. Pertinently, reliance placed by the petitioner on the judgment of this Court in V.R.Bhaskaran (supra), is on account that it has been declared therein that, while the Election Commission issues an Election Notification, they must act in terms of Rule 35A(3) of the Kerala Co operative Societies Rules (KCS Rules) and incorporate the “area” and “constituency” as specified in the Bye-laws, from which the members are to be elected. The petitioner, seeking strength from this, asserts that these principles should apply in the case of the stipulation in the Bye-laws with respect to the qualification of members to contest also.

5. Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the Election Commission, answers the contentions of the petitioner as afore by reading the Explanation to Rule 35A(4) of the KCS Rules which, after its amendment through G.O.(P) No.83/2017, is as under:

“Every A class member of a society shall be eligible to vote and contest in the election if he has subscribed to the minimum share value as prescribed in the bye-laws. Any other restriction if imposed in this regard shall be declared as null and void. The preliminary voters list and final voters list shall contain the name and address of the Society where the member is a society or corporation or a statutory or non statutory board, committee or other body of persons which is a member of another society or Government.”

He submits that the afore extracted Explanation makes it indubitable that every 'A' class member who has subscribed to the minimum share value would be eligible to vote and contest in the elections and that it encompasses the true spirit of Article 243ZK of the Constitution of India because, otherwise, only those persons who are financially capable to hold the minimum qualifying shares will have the opportunity to contest in the elections, thus excluding large number of members who are incapable of doing so. He therefore, says that the Election Commission has issued the impugned notification specifically keeping in mind the afore extracted Explanation of Rule 35A(4) of the KCS Rules and the constitut