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K. Govindan Vs. Dy. Registrar of Co-op. Societies, Cannanore and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberO.P. No. 2086 of 1981-A
Judge
Reported inAIR1984Ker26
ActsConstitution of India - Article, 226; Kerala Co-operative Socities Rules, 1969 - Rules, 26, 26(1) and 26(2)
AppellantK. Govindan
RespondentDy. Registrar of Co-op. Societies, Cannanore and ors.
Appellant Advocate V.P. Mohan Kumar and; N. Sankara Menon, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredThanu Pillai v. Mathevan
Excerpt:
.....- rule 26 enacted on ground of public policy - election conducted in contravention of rule 26 - held, election void and directed that members elected in that election were not properly and validly elected. - - 10779/81 this court heard all the parties and allowed the petition on 25-6-1981. 2. in this case, though the returning officer as well as the pattuvam service co-operative society ltd. i am not told, why the broad 'salutary principles' laid down in the above full bench decision, should not apply, as far as may be to the legislative injunction as well :indeed, i aminclined to hold, that in the interest of fair, impartial and effective administration, such rules enacted on grounds of public policy, should be strictly adhered to and the breach thereof should be visited with..........the election of the new committee of the society) and by including all such persons in the voters list, persons who have no right to vote, have participated in the election and the entire election is totally unauthorised, invalid and infirm. counsel appearing for additional respondents 4 to 9 and also mr. v. c. james, senior government pleader contended that in so far as the election itself has been conducted, the proper remedy is to file an election petition under section 69 (2) (c) of the act read with the explanation thereto. counsel contended that the points raised in this o. p. are to be properly adjudicated in an election petitionto be filed for that purpose and the petition filed under article 226 of the constitution will not lie especially taking into account the subsequent.....
Judgment:
ORDER

K.S. Paripoornan, J.

1. The petitioner is a member of the Pattuvam Service Co-operative Society Ltd. -- 3rd respondent herein. The original petition is filed to call for the records and issue a writ of mandamus or other appropriate direction to the 2nd respondent directing him to prepare a voters list in accordance with Rule 26 of the Co-operative Societies Rules and conduct the election to the committee of management of the 3rd respondent Society and also for the issue of a writ of mandamus directing the 1st respondent to issue appropriate directions to the 2nd respondent to adjourn the election to the committee of management of the 3rd respondent-society after the voters list as contemplated under Rule 26 of the Co-operative Societies Rules are finalised and for the issue of other appropriate writs and reliefs. Though originally the petitioner impleaded three persons as respondents, the Deputy Registrar of Co-operative Societies, Cannanore, the Returning Officer. Pattuvam Service Co-operative Society Ltd., and the Pattuvam Service Co-operative Society Ltd., subsequently in C. M. P. No. 10779/81 the petitioner has impleaded respondents 4 to 9 as additional respondents in the O. P. That was necessitated because the election to the new committee was held during the pendency of the O. P. and six persons were elected as members of the committee and three persons were appointed by the government as their nominees and the six persons newly elected were sought to be impleaded in the O. P. In C. M. P. No. 10779/81 this court heard all the parties and allowed the petition on 25-6-1981.

2. In this case, though the Returning Officer as well as the Pattuvam Service Co-operative Society Ltd. -- respondents 2 and 3 -- were impleaded originally and notices served on them, the newly elected members were impleaded by order dated 25-6-1981 and were served with notices of this O. P. But so far no counter-affidavit has been filed by anyone of them. More than two years have passed since then. The time for filing the counter-affidavits expired long ago. For the purpose of adjudicating the question in this case. I have to proceed on the basis, that the averments contained in the O. P. are correct and true. It is only on that basis, this original petition was heard and is being disposed of now.

3. The petitioner has alleged in para 1 of the O. P. that the committee in office passed a resolution on 15-7-1980 fixing 21-9-1980 as the date to convene a general body meeting for the election of the new committee of the society. This was duly published in the notice board and also communicated to the Deputy Registrar-Ist respondent. The 1st respondent appointed a Returning Officer to conduct the election and issued a notice on 28-8-1980 detailing the programme of election to be held on 21-9-1980. This is Ext. P-l, The date of filing the nomination was fixed as 10-9-1980. Several members filed their nominations. It seems the Returning Officer proclaimed that the 1st respondent has appointed him as the administrator of the society and that the election was adjourned. It is the further case of the petitioner that the order was not served on the society nor on the Board of Directors. It is also the petitioner's case that the order stated that the election should be held as soon as possible. On 13-4-1981 a notice was received by the petitioner and others stating that the election of the new committee is being held on 26-4-1981 at 10 a.m. It was stated in the notice that on 26-3-1981 a draft voters list has been published and on the voters list objections were received and that the final voters list was published on 31-3-1981. The petitioner asserts that none of these things have transpired. The notice is Ext. P-2. According to the petitioner, it was not published. So also the final voters list was not published as stated. The petitioner further asserts that he obtained the voters list immediately and noticed that the number of members have since swelled, from what it was on 15-7-1980, the date of issue of notice convening the general body meeting. According to him, the total strength of the members then was 1181 and now it has increased to 2481. It is stated that as many as 1300 persons were enrolled as new members after 15-7-1980. It is the petitioner's definite case that the committee in office had issued notice for general body meeting on 15-7-1980 in accordance with Rule 2C of the Cooperative Societies Rules. On that basis it is alleged that no member who is admitted after 15-6-1980 can be included in the voters list and the whole programme of election is vitiated. Rule 26 of the Co-operative Societies Rules reads as follows:--

'26. Prohibition on admission of members and transfers of shares on the eve of general meeting:-- (1) No registered society shall admit members or approve the transfer of shares within 30 days prior to the date of issue of notice for the general body meeting.

2. Any person admitted as member and any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said general meeting or at any meeting held subsequent thereto for the purpose of election.'

4. In paragraph 4 of the O. P. the petitioner states that though the above illegalities were brought to the notice of the 2nd respondent, he was not inclined to consider any of the objections, but he was proceeding ahead with the election and the election was fixed to take place on 26-4-1981. Stating that the 2nd respondent acted in violation of Rule 26 of the Co-operative Societies Rules, in preparing the voters list and that members from 1181 to 2481 are persons who have been enrolled after 15-6-1980, and assuch they are not entitled to be included in the voters list, the petitioner filed this original petition seeking for appropriate reliefs on 23-4-81, three days before the election was to take place on 26-4-1981.

5. The original petition was filed in this court praying for the issue of a writ of mandamus directing the 2nd respondent to prepare a voters list in accordance with Rule 26 of the Co-operative Societies Rules and conduct the election to the committee of management of the third respondent society and also to adjourn the election to the committee of management after the voters list as contemplated under Rule 26 of the Co-operative Societies Rules are finalised. This O. P. as stated earlier, was filed on 23-4-1981.

6. The O. P. was admitted and 'Rule Nisi' was issued. Notice ordered on 24-4-1981. Though the petitioner prayed for staying the election to the committee of management of the Co-operative Society in C. M. p. No. 7802 of 1981, this court ordered only notice on 24-4-1981. Both these are before the date of election. During the pendency of the O. P. the election was held and respondents 4 to 9, who have been impleaded as additional respondents, were elected. It is not denied by the respondents and rightly so, that in granting relief, this court can take into account, subsequent events.

7. Counsel for the petitioner contended that Rule 26 of the Co-operative Societies Rules is mandatory and the voters list, including members from 1181 to 2481 who were enrolled after 15-6-1980 (within one month from the date of the passing of the resolution of the committee on 15-7-1980 regarding the date to convene a general body meeting for the election of the new committee of the society) and by including all such persons in the voters list, persons who have no right to vote, have participated in the election and the entire election is totally unauthorised, invalid and infirm. Counsel appearing for additional respondents 4 to 9 and also Mr. V. C. James, Senior Government Pleader contended that in so far as the election itself has been conducted, the proper remedy is to file an election petition under Section 69 (2) (c) of the Act read with the explanation thereto. Counsel contended that the points raised in this O. P. are to be properly adjudicated in an election petitionto be filed for that purpose and the petition filed under Article 226 of the Constitution will not lie especially taking into account the subsequent events that elections have been conducted and the elected members have assumed office. It is true that normally in cases where the matter could be resolved by filing a petition raising an election dispute in the forum provided by the Act, this court will not exercise the discretionary jurisdiction under Article 226 of the Constitution. But in cases where the parties have approached this court at the earliest opportunity, complaining that there is a patent and flagrant violation of law which is in the nature of a command and the controversy raised is about a 'fundamental factor' and relegating the 'aggrieved party' to the pursuit of statutory remedy is likely to cause delay and the relief likely to be afforded will be rendered illusory or ineffectual, this court will be slow in denying jurisdiction It is not the case of the contesting respondents or the Government plekler that there is any statutory bar in adjudicating the controversy raised herein in proceedings under Article 226 of the Constitution of India. His Lordship Mr. Justice T. Chandrasekhara Menon in Devassy v. Asst. Registrar of Co-operative Societies (1976 Ker LT 40) held as follows:

'When the question raised is fundamental and is about the jurisdiction of the Returning Officer to fix a date for poll and conduct the election in violation of Rule 35 (3) (b), the question of asking the petitioner to go for the remedy provided in the Act would not be quite right. Such cases would be fit for exercise of jurisdiction under Article 226 of the Constitution; to raise an election dispute under Section 69 would not be adequate and efficacious remedy when the validty of the voters list is challenged. As the Supreme Court observed in Chief Commr. of Ajmer v. Radhey Sham Dani (AIR 1957 SC 304), it is the essence of the election thatproper electoral roll should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the reparation of the electoral roll opportunity should be given to the parties concerned to scrutinise whether the persons enrolled aselectors possessed the requisite qualifications. Otherwise the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged, Proper electoral roll is a fundamental factor before the election is actually held and if the complaint is that no such roll has been prepared in accordance with the Rules, this court can certainly step in even before the election is actually held and prevent the election being held on the imperfect electoral rolls exercising its jurisdiction under Article 226 of the Constitution.'

Broadly, the reasoning in the above decision is applicable herein also.

8. The centre of controversy is the breach or contravention of Rule 26 of the Kerala Co-operative Societies Rules. Rule 26 enacts as follows:--

' '26. Prohibition on admission of members and transfers of shares on the eve of general meeting. (1) No registered society shall admit members or approve the transfer of shares within 30 days prior to the date of issue of notice for the general body meeting.

(2) Any person admitted as a member and any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said general meeting or at any meeting held subsequent thereto for the purpose of election.'

The said Rule came up for consideration before this Court in the decision reported in Rajachandran Pillai v. Gireesan (1983 Ker LT 627). My learned brother Bhaskaran, J. observed :

'The counsel for the petitioners submitted that only 9 members were admitted to the membership of the Bank : within the prohibited period and even if they did not vote at the general meeting it would have had no impact on the result of the election as the petitioners had won the election by overwhelming majority. He also faintly attempted to argue that in terms of the provisions contained in Rule 28 and 35 (1) all persons admitted to the membership of the Bank prior to 30 days of the date fixed for the poll would beentitled to cast the vote. As the requirements in Rule 26 are mandatory in character, and that position admits of no doubt I reject the contention of the counsel for the petitioners that inclusion of persons in violation of the provisions of Rule 26 and allowing such persons to exercise the right of vote did not vitiate the election held on the basis of such list of members. The principles laiddown by this Court in Thankappan v.Co-operative Tribunal (1979 Ker LT5281 would squarely apply to this case.'

I agree. I may add that the said rule is enacted on grounds of public policy.

9. It is evident that the mandate contained in Rule 26 is in the nature of an 'injunction' or 'command' against the registered society. The mandate isthat no registered society shall admitmembers or approve the transfer of shares within 30 days prior to the date of issue of notice for the general body meeting. Under Rule 26 (2), it is further stated that any such member or any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said general meeting or at any meeting held subsequent thereto for the purpose of election. This is the penalty provided for the contravention of the 'mandate' enshrined in Rule 26 (1). It is idle for the society or any person who has been elected in violation of the mandatory provisions of Rule 26, to contend that notwithstanding the fact that the voters list included members who were not entitled to vote, nonetheless, the election of persons by voters inclusive of the ineligible voters taking part in the election should not be interfered with by this court in exercise of the powers under Article 226 of the Constitution. Can a command or injunction be violated with impunity Can persons who have got a duty to see that elections are properly held, simply fold their hands What is the scope of the penalty provided by Rule 26 (2)? A proper electoral roll should be maintained and that is a 'fundamental factor' as held by His Lordship Justice T. Chandrasekhara Menon in the decision reported in 1976 Ker LT 40. The reasoning of his Lordship will equallyapply to this case also. As I stated earlier. Rule 26 is in the nature of an injunction or command and in spite of the prohibition or injunction specified in Rule 26, ineligible persons were included in the voters list and they also participated in the election the consequent election held in breach of the rules, should be held to be totally infirm and illegal. Dealing with a situation, where an order of injunction granted by a court was contravened and improvements were made, M. S. Menon C. J. delivering the judgment of the Full Bench in Thanu Pillai v. Mathevan (1962 Ker LT 688): (AIR 1963 Ker 179) observed (At P. 181):

'7. This aspect of the question arose for direct consideration in AIR 1956 Pat 455. The Court said:

'If a court comes to the conclusion that an order passed under Order 39, Rule 1 or 2 have been disobeyed and by a contravention of that order the other party in the suit has done something for its own advantage to the prejudice of the other party, it is open to the Court under inherent jurisdiction to bring back the party to a position where it originally stood as if the order passed by the court has not been contravened. The exercise of this inherent power vested in the court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court.'

8. We think that payment should be denied for improvements effected in violation of an order of injunction. As stated in American Jurisprudence, Vol. 28. Page 504, 'an act done in violation of injunction, being unlawful is to be deemed ineffectual and unavailable as to the purpose intended as though it had not been done.'

9. It is the duty of a person bound by an order of injunction to obey its command. Disobedience will provide the foundation for a punishment not the basis for a claim.' (Emphasis supplied)

Rule 26 is enacted on grounds of public policy. It is to enable the conduct of a free and fair election. I am aware that the ratio of the decision reported in 1962 Ker LT 688, as such will not apply to this case. Subject of course,to the peculiar and contextual legal consequences flowing from an order of 'injunction' granted by a court. I am not told, why the broad 'salutary principles' laid down in the above Full Bench decision, should not apply, as far as may be to the legislative injunction as well : indeed, I aminclined to hold, that in the interest of fair, impartial and effective administration, such rules enacted on grounds of public policy, should be strictly adhered to and the breach thereof should be visited with legal consequences flowing therefrom, without any 'dilution'. Persons who disobey the 'mandate or command', do so at their peril. If this court had heard the matter finally on 24-4-1981 itself when notice was ordered (before the date of election which was on 26-4-1981), this court would have certainly granted the writ of mandamus as prayed for directing the 2nd respondent to prepare a voters list in accordance with Rule 26 of the Co-operative Societies Rules and then conduct the election to the committee of management, in accordance with the proper voters list. The fact that election was conducted during the pendency of the O. P. and persons have been elected or that they have assumed charge should not or will not alter the situation Or deter the court from appropriately moulding the relief. Having committed a patent violation of the provisions of Rule 26, (which stands proved on the basis of the uncontradicted averments in the O. P.). can the respondents how say that whatever be the violation, or breach since the election is over, the parties should be left to the pursuit of the statutory remedy? What is the purpose served by relegating the party aggrieved to the pursuit of statutory remedy, which is likely to take enormous time and energy, rendering even the ultimate decision likely to be given, illusory or ineffectual? Have the respondents, a 'prima facie' case, to be urged in answer, to the breach complained of? There is no answer to any one of these questions, posed before the respondents, even at this late stage. In the facts and circumstances, I am of opinion, the breach or violation complained of, is 'fundamental' and if the parties are directed to pursue the statutory remedy provided by the Act, it will be a dilatory process, which in the circumstances may even render the ultimate decision illusory and ineffectual. The fact thatin 'election matters', this court will not ordinarily entertain an original petition or interfere in exercise of the powers vested in it under Article 226 of the Constitution of India should not lead to a situation, whereby the concerned authorities or the persons who participate in the elections acting in violation of the statutory command would be smug in the belief or an impression, that whatever be the degree or gravity of the violation or breach of the mandate of the law, once the election is held, this court will be, powerless or reluctant to deal with the situation, even if there is any patent transgression of the limits imposed by law. In this case, the petitioner has prayed that this court may be pleased to issue a writ, order or direction that 'this court may be pleased deem fit and proper to grant in the circumstances.' Taking into the subsequent events --namely, that the elections were held and the members elected have assumed their office. I am constrained to pass appropriate orders, in moulding the relief to be granted to the petitioner. I hold that the election conducted on 26-4-1981 in contravention of Rule 26 of the Co-operative Societies Rules is totally void, illegal and without jurisdiction. The inevitable legal consequence flowing therefrom is to declare that the members so elected in that election were not properly and validly elected. I hereby do so. The further consequential direction that is necessary to be passed is that the elected members should forthwith vacate their office. It shall be so done forthwith.

The original petition is allowed with costs, payable by Respondents 4 to 9.


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