President, Board Of Directors Of The Peroor Service Co Operative Bank Ltd.Vs Kerala State Co Operative Election Commission Represented By Its Secretary

N. Nagaresh, J.

The petitioner is President of the Board of Directors of the Peroor Service Co-operative Bank Limited. The petitioner seeks to quash Exts.P2, P3, P5 and P7 and to direct the 1st respondent to allow Ext.P4 online application.

The petitioner is the President of the Co-operative Bank established in the year 1995. The present Managing Committee of the Bank was elected on 23.12.2018. The term of the Committee will expire on 22.12.2023. The Managing Committee of the Bank passed a resolution dated 11.09.2023 resolving to conduct election to the new Managing Committee on 19.11.2023. An application was submitted to the 1st respondent-Kerala State Co-operative Election Commission as per Ext.P1.

The 1st respondent rejected the application holding that there is no sufficient space for arranging polling booth in the Head Office building of the Society and that Form-6B Register of the Bank has not been maintained properly. The said rejection as per Ext.P2 communication dated 04.10.2023 was served on the petitioner along with Ext.P3 letter dated 13.10.2023.

The Managing Committee discussed the matter on 16.10.2023 and decided to rectify the defects pointed out in the Form-6B Register and to use a school building for conducting the election. A fresh application, Ext.P4, was submitted on 18.10.2023 to the 1st respondent requesting to conduct the election.

Thereupon, the Unit Inspector conducted inspection of the school. The Assistant Registrar issued Ext.P5 letter stating that the petitioner has failed to rectify the defects pointed out by the 1st respondent. To Ext.P5, the petitioner submitted Ext.P6 reply dated 31.10.2023. The petitioner further approached the 1st respondent personally. The 1st respondent then handed over Ext.P7 communication dated 08.11.2023 which stated that since the Assistant Registrar has reported that the election could not be conducted without rectifying entire defects in the Form-6B Register, the request to conduct the election to the Managing Committee has been rejected.

The petitioner states that as per Sections 27 and 28 of the Kerala Co-operative Societies Act, the final authority of the Society shall vest in a General Body of the Members. It is the right of the General Body to constitute a Managing Committee. By not holding election as per the desire of the General Body, the respondents are taking away the right of the General Body to elect a Committee in accordance with the provisions of the Kerala Co-operative Societies Act and the Rules.

The counsel for the petitioner urged that earlier elections were also conducted on the basis of the same Form-6B Register which is now found to be defective by the respondents. The Managing Committee of the Society is taking all earnest efforts to rectify defects, if any, in the Form-6B Register. After the year 2018, only 486 members are newly included in the Society. No individual has raised any objection against Admission Register or Share Register maintained by the Bank.

The counsel for the petitioner further urged that the respondents have only pointed out some minor mistakes in the Form-6B Register which can be rectified in no time. The Co-operative Societies Act and the Rules contemplate publication of draft voters list and its finalisation. As per Rule 35A(5), persons included in the voters list should be supplied with identity cards in Form-6A. The identity cards can be issued up to two days prior to the date of election. Therefore, there is no reason to postpone the election. The attempt of the respondents is to avoid election within the statutory period and take over the administration of the Society by appointing an Administrative Committee. Therefore, the 1st respondent is compellable to allow Ext.P4 online application.

The Government Pleader resisted the writ petition. The Government Pleader submitted that a report submitted by the Assistant Registrar (General), Kollam disclosed the following facts.

The 2nd and 3rd respondents went for the inspection on 22.11.2023. At the time of inspection, the Form-6B Register was not available in the Head Office. But, it was claimed to be kept in the Karikkode Branch of the Society. The Secretary could deliver the Register from the said Branch for inspection. Altogether there were 3256 members found as per the share list of the Bank as on 22.11.2023. The information revealed from the inspection are as follows:-

(1) Those who are recorded as deceased members in Form-6B Register, their share amount stand remain in the admission register. There are 84 such cases identified.

(2) As per the provisions of Rule 16A(1) of the Kerala Co-operative Societies Act, a person admitted as a member of a Society shall be issued with an Identity Card in Form-6A. In the inspection it is found that the Identity Cards are not issued at the time of admission of a member. The admission date and date of issue recorded in the Form-6B Register were not matching. There are 435 members of such cases identified. There are 524 members in Form-6B Register, which the date of issue of the card not recorded.

(3) As per the provisions of Rule 16A(3) of the Kerala Co-operative Societies Act, 1969, the identity card shall be issued direct to the members concerned after obtaining his acknowledgment in the Register in Form-6B and shall not be supplied to any other person on his behalf. There are 231 numbers without member's acknowledgment and also found that the signature/acknowledgment in Form-6B Register were not matching with the signature / acknowledgment in the Admission Register of that members. There are 424 such cases identified.

(4) As per the provisions of Rule 16A(1) of the Kerala Co-operative Societies Act, the members shall furnish two copies of his recent photograph of passport size to the Society. Copies of the photograph shall be attested by the Chief Executive or an officer specially empowered in this behalf by the Committee of the Society and one copy of the duly attested photograph shall be affixed in the Identity Card and the other copy shall be affixed in Form-6B Register maintained for the purpose. Photograph of 90 members are not seen affixed in Form-6B Register.

(5) Note attached to the Form-6B of the Schedule of Kerala Co-operative Societies Rules insist photo to be attested by the authorised officer under seal as per Rules. Total number of 635 members, the photographs are seen affixed without signature of the authorised officer of the Society.

Respondents 2 and 3 submitted that a free and fair election cannot be conducted without correcting the afore anomalies.

The petitioner challenges Exts. P2, P3, P5 and P7 orders/communications and seeks to direct the 1st respondent to allow Ext.P4 online application. The tenure of the Board of Directors of the Society is to expire on 22.12.2023. The Society submitted Ext.P1 application on 16.09.2023 to the State Co-operative Election Commission seeking to conduct election to the Director Board of the Society, on 19.11.2023. The said request was declined on the ground that the proposed polling station at the Bank’s Head Office has no sufficient space to conduct election. It was also stated that the Admission Register and Form 6B Register are defective and that all members are yet to be provided with Identity Cards.

The petitioner cured the defects, shifted the polling venue to a school and submitted Ext.P4 application requesting to hold the election on 17.12.2023. To Ext.P4, the Assistant Registrar replied with Ext.P5, stating that on an inspection made by the Unit Inspector, Kollam, it is found that the defects are not cured. The Assistant Registrar informed that election can be held only after curing all the defects.

One of the defects pointed out by the respondents is that those who are recorded as deceased members in Form 6B Register, their share amount stands remained in the Admission Register. The counter affidavit filed by the petitioner against the Report would show that among the 3256 members of the Society, 92 persons are dead, 435 have closed their shares and 285 have lost their right to vote since they failed to pay the enhanced share value. The petitioner has provided a list of dead members, a list of share closed members and a list of members who have not paid enhanced share value containing the details of 812 persons. The defects pointed out in Form 6B Register with respect to the said persons need not be rectified. At the most what is needed is appropriate endorsements in the Register. Lists of ineligible members are readily available, which can be used while drawing voters list.

The respondents have pointed out that photograph of 90 members are not seen affixed in Form 6B Register. The petitioner has sent notice to 61 persons already in this regard and has produced Ext.P11 postal receipts in proof of sending notices. The petitioner is in the process of curing the said defect.

The respondents have further stated that the Note attached to the Form 6B of the schedule of the Kerala Co-operative Societies Rules insist photo to be attested by the authorised officer under seal as per Rules. Photographs of 635 members are seen affixed without signature of the authorised officer of the Society. The petitioner would submit that the 635 members pointed out by the respondents are out of the 812 closed memberships.

It has been further alleged that members' acknowledgment with regard to 231 members are not seen affixed in Form 6B Register. The petitioner submits that the allegation is incorrect. Acknowledgment of the members have been obtained in the Form 6B Register. There is no disparity of signature/acknowledgment in the Form 6B Register with the Admission Register. Photographs of certain members were missing. Registered notices were issued to those persons directing them to produce photographs. In view of the afore facts, I find that though there are certain lacuna in the Form 6B Register maintained by the petitioner, the petitioner is striving to correct those mistakes. The petitioner can very well cure such defects, if any, before the election is conducted.

Election to the Managing Committee was conducted up to the year 2018 with the very same Form 6B Register. The respondents have not pointed out any disparity in entering the name and address of the persons in the Form 6B Register with Admission and Share Register. In such circumstances, I find that the respondents are not justified in not declaring the election to the Bank on the basis of Ext.P4 request made by the petitioner. However, in view of statutorily required time, there cannot be a direction to the respondents to declare the election on 17.12.2023.

The writ petition is therefore disposed of with the following directions:

(1) The petitioner will take a fresh decision for holding election to the Board of Directors of the Peroor Service Co-operative Bank Limited and forward the same to the 2nd respondent. The 2nd respondent shall without delay place the application/request before the 1st respondent. The 1st respondent shall take a decision and take such steps to hold election to the Bank as expeditiously as possible.

(2) If the respondents find that due to expiry of the term of the present Managing Committee before holding of elections, an alternate arrangement is to be made for administration of the Bank, the respondents shall appoint an Administrative Committee of three members nominated from among the members of the Director Board of the Bank against whom no statutory proceedings are taken or pending at present.