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Judgment
The short question that arises for consideration in this Writ Petition is whether the expression, “any other restriction, if imposed in this regard, shall be declared as null and void”, occurring in the Explanation to Rule 35A(4) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as the 1969 Rules), relates only to the prescription that every ‘A’ Class member who has subscribed to the minimum share value shall be eligible to vote and contest in the election or whether the said expression prohibits the imposition of any other qualification/restriction through the bye-laws, as in the present case.
The learned counsel appearing for the petitioner submits that the question raised in this writ petition is covered in favour of the petitioner by the judgments of a learned Single Judge of this Court in Chandran K. M. v. State Co-operative Election Commissioner and Others, 2019 (4) KHC 308 and Yunus Ali v. State Co-operative Election Commission, 2024 KHC 605.
The learned State Attorney appearing for the third respondent, the learned Standing Counsel appearing for respondents 2, 4 and 5, and the learned counsel appearing for the first respondent would submit that this is the second election being conducted after Ext.P2 amendment of the bye-laws of the first respondent society. It is submitted that the law laid down by the learned Single Judge in the decisions referred to above can no longer be relied upon in the light of the finding of the Division Bench in Jalaludeen P.I. @ Jalal v. Returning Officer and others, 2023 (6) KHC 383, wherein this Court has taken the view that the expression, “any other restriction, if imposed in this regard, shall be declared as null and void”, occurring in the Explanation to Rule 35A(4) of the 1969 Rules, relates only to the prescription that every ‘A’ Class member who has subscribed to the minimum share value shall be eligible to vote and contest in the election and does not prohibit the imposition of any other restriction through the bye-laws. It is further submitted that this Court followed the aforesaid Division Bench judgment in Janardhanan T. v. State of Kerala, 2024 KHC OnLine 1763.
Having heard the learned State Attorney appearing for the third respondent, the learned Standing Counsel appearing for respondents 2, 4 and 5, and the learned counsel appearing for the first respondent, I am of the view that the petitioner has not made out any case for granting the reliefs sought for in the writ petition. Ext P2 is the extract of the allegedly offending bye-law of the 1st respondent society. It reads thus:-
“ബൈല വ്യവസ്ഥ 22- ഭരണസമിതി തെരഞ്ഞെടുപ്പ്”
1969-ലെ കേരള സഹകരണ സംഘം നിയമം 35-ആം ചട്ട പ്രകാരം പൊതുയോഗം തെരഞ്ഞെടുത്ത 13 (പതിമൂന്ന്) അംഗങ്ങൾ അടങ്ങിയ ഡയറക്ടർ ബോർഡിൽ ബാങ്കിന്റെ ഭരണ നിർവ്വഹണം നിക്ഷിപ്തമായിരിക്കും. ഭരണസമിതി അംഗങ്ങളെ വായ്പാക്കാറായ 'എ' ക്ലാസ് അംഗങ്ങളിൽ നിന്നും തെരഞ്ഞെടുക്കണം. ആയതിൽ പട്ടിക ജാതി/പട്ടിക വർഗ്ഗ അംഗങ്ങൾക്ക് ഒരു സ്ഥാനവും വനിതാ പ്രതിനിധികൾക്ക് 3 (മൂന്ന്) സ്ഥാനങ്ങളും 10,000/- രൂപയിൽ കുറയാത്ത സ്ഥിര നിക്ഷേപം ബാക്കിയുള്ളവർക്ക് ഒരു സ്ഥാനവും ബാക്കി വരുന്ന 8 പ്രതിനിധികൾ ജനറൽ വിഭാഗത്തിൽ നിന്നും ആയിരിക്കും.”
Rule 35A(4) of the 1969 Rules to the extent relevant, reads thus:-
“Procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission.-- The election of the members to the committee of Societies by the State Co-operative Election Commission shall be conducted in the following manner through the Registrar as specified in the explanation to sub-rule (2) of Rule 35.
(1)- (3) ...
(4)The State Co-operative Election Commission shall appoint an Electoral Officer from among the officers of the concerned. Administrative Department 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, rules and bye-laws as stood on a date 60 days prior to the date fixed for the poll. The list shall contain the admission number, name of the member, name of father or husband and the address of such member. Such list shall also contain the name and other particulars of the delegate in cases where the member is a society or corporation or a statutory or non-statutory Board, Committee or other body of persons which is a member of another society or Government. It shall be the duty of the Chief Executive of the concerned society to prepare, up date the list as per the Rules and submit voters list duly approved by the Committee, to the Electoral Officer within thirty five days prior to the date fixed for election and render all assistance required by the Electoral Officer. It is the duty of the Electoral Officer to publish the preliminary voters list in Form No. 34 in the Notice Board of the Head Office and branches if any, of the society and call for objections if any, on the voters list within seven days of publication and publish final voters list in Form No. 35 within twenty days prior to the date fixed for the poll. The final voters list so prepared should be published in the Head Office and branches of the concerned society. A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee of the Society.
Explanation.-- Every A class member of a society shall be eligible to vote and contest in the election if he has subscribed to the minimum share value as prescribed in the bye-laws. Any other restriction if imposed in this regard shall be declared as null and void. The preliminary voters list and final voters list shall contain the name and address of the society where the member is a society or corporation or a statutory or non statutory board, committee or other body of persons which is a member of another society or Government.
Provided that this explanation shall not be applicable to Primary Anand Pattern Cooperative Societies with regard to the qualifications of membership as per their bye-laws.”
In Jalaludeen P.I. (supra), the Division Bench held as follows:-
“..............Admittedly, the explanation to R.35A(4A) (sic) has been incorporated by amendment only on 30.12.2017. Prior thereto, the provisions with effect from 26.11.2014 was that "only active members shall be included in the voters list. The members who have utilised the minimum service provided in the society during two consecutive years shall be considered as active members". Here, therefore, the main provision of subrule (4) and sub-rule (4A) is specifically with regard to the preparation of the preliminary voters list and its finalisation.
14.The Apex Court has clearly held that the proper function of an explanation is to explain or elucidate what is enacted in the substantive provision and not to add or subtract from it. An explanation cannot either restrict or extend the enacting part. The explanation must be interpreted according to its own tenor that it is meant to explain and not vice versa. In Bihta Co - operative Development and Cane Marketing Union Ltd. v. Bank of Bihar, the Apex Court specifically held that an explanation must be read so as to harmonise with and clear up any ambiguity in the main section. It should not be so construed as to widen the ambit of the section.
15.A reading of sub-rules (4) and (4A) would specifically make it clear that what was being sought to be explained by the explanation was with regard to the right to be included in a voters list and therefore, the eligibility to vote. Even otherwise, the explanation only says that every A class member of a society shall be eligible to vote and contest in the election if he has subscribed the minimum share value as prescribed in the byelaws. The further statement that any other restriction if imposed "in this regard" shall be declared as null and void could only mean any other restriction with regard to the right of an A class member who has subscribed to the minimum share value as prescribed in the bye - laws. Therefore, the restriction which is referred to in the explanation can only be a restriction with regard to subscription of the minimum share value by an A class member. It is specifically in such circumstances that the decisions relied on by the learned counsel for the petitioner, that is, the decision in Chandran K. M. v. State Co - operative Election Commissioner and others and the common judgment in W.P.(C) Nos.29886 and 30314 of 2023 were rendered.”
In Janardhanan (supra) I have held thus:-
“8.The contention of the learned counsel appearing for the petitioner that the by-laws have also to be in conformity with the 1969 Rules and therefore, any requirement of the by-law would not operate in the face of the Explanation to Sub-rule (4A) of Rule 35A of 1969 Rules appeared to be attractive at first blush. However, that contention must also fail on deeper scrutiny. Section 28 (1) of the 1969 Act reads thus:- “28. Appointment of committee. (1) The general body of a society shall constitute a committee, for a period of five years, in accordance with the by-laws and entrust the management of the affairs of the society to such committee: The provisions in the Explanation to Sub-rule (4A) of Rule 35A of 1969 Rules can only be subject to the provisions of Section 28(1) of the 1969 Act. In other words, the provisions of Sub-rule (4A) of Rule 35A of 1969 Rules cannot operate in the face of the contrary provision in sub-Section (1) of Section 28 of the 1969 Act.”
The decision in Chandran K.M. (supra) has already been considered and explained by the Division Bench in Jalaludeen P.I. (supra). The decision in Yunus Ali (supra) has no application to the facts of this case. In the light of the law laid down in Jalaludeen P.I. (supra) and Janardhanan T. (supra), the petitioner is not entitled to any relief. No other point has been raised. Writ Petition fails and is dismissed in limine.
APPENDIX OF WP(C) NO. 22634 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE NOTIFICATION DATED 25.05.2026 ISSUED BY THE SECOND RESPONDENT
Exhibit P2 A TRUE COPY OF THE AMENDMENT TO CLAUSE 22 OF THE BYE-LAWS OF THE FIRST RESPONDENT BANK