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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anu Sivaraman, C.Jayachandran, JJ.
Jalaludeen P.I @ Jalal – Petitioner
Versus
The Returning Officer Parathode Service Co-Operative Bank Ltd. And Ors. – Respondents
W.P.(C) No.31646 of 2023, W.A. Nos.1719 & 1733 of 2023
Decided On : 10-10-2023
Kerala Co-operative Societies Rules - Rule 35A, (4), (4A) - Co-operative Societies Act - Section 19, 20, 28(1) - Co-operative Societies - Contest elections - Bye-laws of Society is contrary to provisions - Whether Clause 34 of Ext.P5 bye-laws of Society is contrary to provisions of explanation to sub-rule (4A) of Rule 35A of Kerala Co-operative Societies Rules – Mere contention of petitioner that he had been permitted to contest elections earlier without noticing embargo in bye-law cannot make any difference to situation. (Para 17)
Finding of the Court: True scope of explanation to Rule 35A(4A) is only with regard to exercise of right to vote since main Rule is only with regard to preparation and finalisation of voters list - Any other interpretation as suggested by learned counsel for petitioner would be totally unwarranted - Provisions of Clause 34 in Ext.P5 bye-laws are not contrary to any of provisions of Act or Rules framed - Rejection of nomination of petitioner in writ petition on ground that he has been elected as a member of Managing Committee consecutively for more than three times and did not obtain prior permission of Deputy Registrar for contesting elections was perfectly legal and valid – Court is of opinion that, that will make no difference to situation since what is being considered is legality of an order rejecting a nomination on available facts - There is nothing to show that provisions of Clause 34 of Ext.P5 bye-laws have been diluted in any manner - Mere contention of petitioner that he had been permitted to contest elections earlier without noticing embargo in bye-law cannot make any difference to situation.
Result: Writ Appeals allowed.
Based on the provided legal document, the key legal principles and findings are as follows:
The scope of the explanation to Rule 35A(4A) of the Kerala Co-operative Societies Rules is limited to clarifying the exercise of the right to vote, specifically regarding the eligibility to be included in the voters list. It does not extend to other restrictions imposed by bye-laws (!) (!) .
The main Rule 35A(4) pertains to the preparation and finalization of the voters list, and the explanation to sub-rule (4A) is intended solely to elucidate this aspect, not to modify or extend the restrictions imposed by bye-laws (!) (!) .
Restrictions in bye-laws, such as limitations on the number of consecutive terms a member can serve on the managing committee, are valid if they are consistent with the Act and Rules. Bye-law provisions that restrict contesting elections beyond a certain number of terms are enforceable and do not conflict with the explanation to Rule 35A(4A) (!) (!) .
The interpretation of explanations in Rules must be to clarify and not to broaden or restrict the substantive provisions. An explanation cannot be used to add restrictions beyond what is explicitly provided in the main rule (!) (!) .
The legality of the rejection of a nomination based on bye-law restrictions, such as serving more than three consecutive terms, is upheld when such restrictions are valid and properly applied. The fact that a member previously contested elections without raising the restriction does not alter its validity (!) (!) .
The provisions in the bye-laws, including restrictions on contesting elections, are not contrary to the Act or Rules when they are within the scope of the powers granted by the bye-laws and the relevant statutory provisions (!) (!) .
The court emphasizes that the proper interpretation of the rules and bye-laws is essential, and restrictions imposed by bye-laws that are consistent with the Act and Rules are enforceable. The scope of explanations should be harmonized with the main provisions without expanding or contracting their meaning (!) (!) (!) .
The court dismissed the writ petition and upheld the rejection of the nomination, confirming that restrictions on consecutive terms are valid and that the bye-laws' provisions are not contrary to the statutory framework (!) (!) .
In summary, the legal reasoning confirms that explanations to Rules are meant for clarification regarding specific aspects like voter eligibility, and do not alter the fundamental restrictions or provisions imposed by bye-laws, provided such bye-law restrictions are consistent with the Act and Rules.
JUDGMENT :
Anu Sivaraman, J.
W.P.(C) No.31646/2023 is filed seeking the following reliefs :
(ii) to declare that the act of the 1st respondent rejecting the nomination paper of the petitioner is illegal.
(iii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 1 to 3 to accept the nomination of the petitioner and permit him to contest the election to the managing committee of the 4th respondent society as notified in Ext.P2.”
After hearing the parties, an interim order was rendered therein directing respondents 1 to 3 to accept the nomination of the petitioner and to allow him to contest the election subject to result of the writ petition.
2. W.A. No.1719/2023 is filed by the 4th respondent in the writ petition, that is, the concerned Society challenging the interim order. W.A. No.1733/2023 is filed by the Returning Officer, Electoral Officer and the State Co-operative Election Commission.
3. We have heard Sri.Arjun Raghavan, the learned counsel appearing for the writ petitioner, Sri.Liji J. Vadakedom, the learned counsel appearing for the Society as well as Sri.C.M.Nazar, the learned counsel appearing for the State Cooperative Election Commission as well as the Electoral Officer and the Returning Officer.
4. The only question which arises for consideration in the writ petition is whether Clause 34 of Ext.P5 bye-laws of the Society is contrary to the provisions of explanation to sub-rule (4A) of Rule 35A of the Kerala Co-operative Societies Rules (for short, 'the Rules'). We shall first enumerate the provisions of the Act and the Rules which are relevant for consideration of the issue.
5. Section 19 of the Co-operative Societies Act (for short, 'the Act') provides that no member of a society shall exercise the rights of a member unless he has made such payments to the society in respect of membership or has acquired such interest in the society as may be prescribed by the rules or the bye-laws. Section 20 provides that notwithstanding anything contained in any other provision of the Act or any other law, every member of a society shall have one vote in the affairs of the society. Five situations are enumerated where such right to vote would stand restricted. Section 28(1) provides that the general body of a society shall constitute a committee for a period of five years in accordance with the bye-laws and entrust the management of the affairs of the society to such committee.
6. The method of conduct of election to committees of cooperative societies by the State Co-operative Election Commission is specifically provided under Rule 35A of the Rules. Sub-rule (4) of Rule 35A provides for appointment of an Electoral Officer who shall be responsible for the publication of the list of members qualified to vote at the election in accordance with the provisions of the Act, Rule and bye-laws as stood on a date 60 days prior to the date fixed for the poll. The manner of preparing the list, the details to be provided therein, publication of the preliminary voters list, calling for objections, considering the same and the publication of the final voters list are provided in the sub-rule. Sub-rule (4A) provides that in the case of Regional Milk Producers Union, separate list of members qualified to vote at the election shall be prepared for each revenue district within the jurisdiction of the said union duly approved by the committee. The explanation under sub-rule (4A) reads as follows :-
Sub-rules (4) and (4A) would specifically make it clear that what was being sought to be explained by explanation was with regard to right to be included in a voters list and therefore, eligibility t....
The main legal point established in the judgment is the violation of the petitioner's fundamental right to participate in the election process due to the inconsistency between Bye-law 24(viii) and Se....
The right to contest elections is a statutory right, not a fundamental right, and arbitrary term restrictions violate the autonomy of co-operative societies.
The amendment allowing nomination of women to co-operative committees is constitutional, reinforcing women's participation while affirming that election is not the exclusive method for committee form....
The main legal point established in the judgment is that the bar under Section 73D of the M.C.S. Act does not apply to the petitioner for contesting the election to the Managing Committee of the coop....
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