JUDGMENT :

The petitioner is a member of the third respondent Society. The last election to the Managing Committee of the third respondent was conducted on 19.11.2017 and hence, the term of the incumbent committee is due to expire on 19.11.2022. Therefore, the Committee adopted Ext.P1 resolution on 09.10.2022, requesting the State Co-operative Election Commission to conduct the next election on 30.10.2022. This writ petition is filed contending that the election to the Managing Committee cannot be conducted based on a resolution adopted by the Managing Committee alone, since Section 29(i)(ce) of the Kerala Co-operative Societies Act ('the Act' for short) mandates a declaration by the general body regarding the date of holding of its general body meeting and conduct of elections when due.

2. Adv.M.Sasindaran, learned Counsel for the petitioner, contended that under the Scheme of the Co-operative Societies Act, the final authority is the general body of members. Therefore, it is for the general body to decide as to when the next election of its representatives (Managing Committee members), is to be conducted. If majority of the members are of the opinion that it would be conducive to have a departmental administrator rather than an elected committee, the general body can even decide not to hold elections. In any event, Section 29(i)(ce) being specific to the effect that the general body shall be held for the purpose of declaration regarding date of holding the general body and conduct of elections, Ext.P1 resolution of the Managing Committee taken without following the above mandate cannot be acted upon. It is contended that even though Rule 35A(1) of the Co-operative Societies Rules ('the Rules' for short) stipulates that the committee shall meet at least 60 days prior to the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of the election to the new committee, such resolution can be taken only after general body declaring the date of election. It is contended that even if there is dichotomy between the Act and the Rules, the primary legislation will prevail. In support of this contention, reliance is placed on the decision of the Apex Court in Kailash v. Nanhku [(2005) 4 SCC 480], and of this Court in Anilkumar K. and another v The Managing Director, Consumered and others [2015 KHC 709].

3. Senior Advocate, George Poonthottam appearing for the third respondent Society contended that the attempt through the writ petition is only to thwart the election and thereby provide for administrator rule in the society. It is pointed out that although Ext.P1 resolution was taken on 14.09.2022 and placed before the General Manager and Functional Registrar immediately thereafter, the resolution was not forwarded to the State Co-operative Election Commission/first respondent. As a result, the proposed election schedule was upset. Hence, the Committee of the Society was compelled to pass a second resolution, proposing to conduct the polling on 30.10.2022. Even the second resolution having not been forwarded to the first respondent, the Society had to approach this Court in W.P.(C) No.29953 of 2022. In spite of filing of that writ petition, the State Co operative Election Commission has been dilly dallying in the matter. Therefore, it is evident that the instant writ petition has been filed with the only objective of preventing a timely election.

4. On merits, it is contended that as per Section 28 of the Co-operative Societies Act, the general body has to constitute a committee for a period of five years for managing the affairs of the society. Rule 35A(1) require the Committee to convene a meeting 60 days prior to the date of expiration of the term and pass a resolution fixing the date, time and place for the conduct of the next election. Going by the objective of the Co-operative Societies Act and its scheme, as evident from Section 28 and Rule 35A, it is essential to take timely steps for con