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2023 Supreme(Online)(KER) 2162
HIGH COURT OF KERALA
N. NAGARESH, J
VYPIN RURAL HOUSING CO-OPERATIVE SOCIETY LTD. NO.E27 – Appellant
Versus
THE STATE CO-OPERATIVE ELECTION COMMISSION – Respondent
WP(C) 39832/2023
R.T. Pradeep, P. Bijimon, M. Bindudas, Binu Mathew, C. M. Nazar, SC
Liquidated societies are distinct entities that cannot exercise voting rights in co-operative elections, adhering strictly to provisions of the Kerala Co-operative Societies Act.
Headnote:
Voting - Co-operative Societies - Kerala Co-operative Societies Act Sections [20, 21, 71, 72] - Court ruled that societies under liquidation cannot participate in elections, citing specific statutory provisions that restrict voting rights and affirm the distinct roles of societies and liquidators.
Fact of the Case:
The petitioners challenged the inclusion of societies under liquidation in a voters list for elections to a co-operative housing federation, arguing that such societies had no right to send delegates for voting due to their status.
Finding of the Court:
The court determined that societies under winding up do not retain the rights to delegate voting power, as their functionality is effectively ceased and governed by the liquidator, thus invalidating their inclusion in the voters list.
Issues: Whether societies under liquidation can participate and vote in elections for a managing committee within a co-operative federation, and if such inclusion in the voters list violates statutory provisions.
Ratio Decidendi: The court concluded that societies in liquidation lose their voting rights as per the statutory framework, which differentiates between functional societies and those under winding up proceedings.
Final Decision: The court set aside the voters list inclusion of societies under liquidation, affirming their ineligibility to participate in elections.
J U D G M E N T
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The 1st petitioner is a Primary Rural Housing Co-operative Society and the 2nd petitioner is its delegate to vote in the election to the Managing Committee of the 4th respondent-Kerala State Co-operative Housing Federation Limited. The petitioners seek to quash Ext.P8 to the extent it includes respondents 5 to 11 in the voters list.
2. The petitioners state that respondents 5 to 11 Societies are under liquidation and are under the control of a Liquidator appointed by the Co-operative Department.
Election to the 4th respondent-Kerala State Co-operative Housing Federation Limited has been notified as per Ext.P1 notification dated 03.11.2023. The date of publication of final voters list was on 23.11.2023. The date of poll is 16.12.2023.
3. The petitioners state that the right of a Primary Society to send delegate to cast vote and to contest to the Managing Committee of Apex Society is conferred only upon those Primary Societies which have a Managing Committee in office or Administrator / Administrative Committee in office. A Primary Society can send its member as delegate when the Administrator / Administrative Committee is in office. Such power is not conferred when the Primary Society is under liquidation. Therefore, Ext.P8 voters list to the extent of inclusion of respondents 5 to 11 which are under liquidation, is ultra vires Sections 20 and 21 of the Kerala Co-operative Societies Act and Rule 44A of the Kerala Co-operative Societies Rules. The respondents are therefore compellable to eschew respondents 5 to 11 from Ext.P8 voters list, contend the petitioners.
4. The Standing Counsel for the 1st respondent-State Co-operative Election Commission resisted the writ petition. Referring to the Bye-laws of the Kerala State Co-operative Housing Federation Limited, specifically to Clause No.4(e), the Standing Counsel pointed out that any member-Society shall cease to be a member only if such a member-Society is liquidated. As the liquidation proceedings are still not concluded in respect of respondents 5 to 11, the Societies are entitled to send a delegate for voting in the election to the Managing Committee of the 4th respondent-Federation.
5. The Standing Counsel further urged that once the election notification is published, this Court shall not interfere in the election proceedings, since the petitioners have an efficacious alternate remedy under Section 69 of the Kerala Co-operative Societies Act . As respondents 5 to 11 are under liquidation, the Government of Kerala is a necessary party to the writ petition. The writ petition is liable to be dismissed for non-joinder of necessary parties.
6. Standing Counsel entered appearance on behalf of the 4th respondent-Apex Society. The 4th respondent supported the arguments of the petitioners and submitted that a member-Society under liquidation process cannot send a delegate for voting in the election to the Managing Committee of the 4th respondent-Apex Society.
7. I have heard the learned counsel for the petitioners, the learned Standing Counsel representing respondents 1 to 3 and the learned counsel appearing for the 4th respondent. 8. Section 21 of the Kerala Co-operative Societies Act , 1969 reads as follows:- 21. Manner of exercising vote:- (1) Every member of a society shall exercise his vote in person.
(2) Notwithstanding anything contained in sub-section (1), a society or corporation or a statutory or non- statutory 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.
Sub-section (2) of Section 21 makes it clear that the right of a Society or Corporation or a statutory or non-statutory Board, Committee or other body of persons which is a member of another society will be subject to rules made under the Kerala Co-operative Societies Act . Such Societies may appoint one of its members to vot
