- (1.)WRIT petitioners, two in number in O. P. 15331 of 1992 challenge the judgment of the learned Single Judge dismissing their petition. They approached the Court on the allegation that they were elected to the Board of Directors of the third respondent - Cooperative Bank in the election held on 8-11-1992 and that first petitioner was elected as President of the Board. They contended that 11th respondent, the Administrator, refused to handover charge to the newly elected Board of Directors. It was their case that fifth respondent, who lost in the election, challenged the second petitioner's election to the Board of Directors by filing Arbitration Case No. 75/92 under S.69 of the Kerala Cooperative Societies Act, hereinafter referred to as "the Act", and that Arbitrator, the second respondent, passed Ext. P5 order ordering recount of the votes polled in favour of the second petitioner and fifth respondent. While so, the first respondent by order dated 6-11-1992 extended the term of the 11th respondent as Administrator from 10-11-1992 to 12-2-1993 or to the date on which an elected managing committee enters upon office, whichever is earlier. Petitioners prayed for the issuance of a writ of certiorari quashing Ext. P5 order directing recounting of votes and for the issuance of a writ of mandamus directing the Administrator to handover charge to the Board of Directors which came out successful in the election held on 8-11-1992 and for consequential reliefs. Learned Single Judge dismissed the Original Petition holding that the extension of the term of the Administrator does not harm the petitioners since extension was limited upto the date on which an elected managing committee enters upon office and therefore if the committee has taken charge, the office of the Administrator came to an end. Regarding the order of recounting of ballot papers, it was held that it is only an interlocutory order and that if irregularities are alleged, it is fair that doubts are removed by recounting of the votes so that fairness is restored to the election process. As regards the contention raised by the petitioners that the Returning Officer violated R.35(4) of the Kerala Cooperative Societies Rules, hereinafter referred to as "the Rules", by not handing over the used and unused ballot papers to the Secretary of the Society, it was held that there is no violation of R.35 (4) inasmuch as the unused and used ballot papers are in the custody of the present Secretary.
(2.)THE questions that arise for consideration in this appeal are whether Ext. P5 order of recount issued without notice to the contesting parties, the resultant recount and declaration of the defeated candidate as having succeeded in the election is valid, whether there was violation of the provisions contained in R.35(4) of the Rules, and whether the authorities under the Act acted in a proper manner.
For a proper understanding of the entire circumstances, we think it necessary to refer to the averments made by petitioners and respondents in the various affidavits filed by them. Petitioners state that first petitioner is the president and second petitioner is an elected member of the Board of Directors of third respondent Cooperative Bank. Election to the Board of Directors was held on 8-11-1992 and seven persons were returned elected. Result of the election was declared at about 8.30 P. M. on that day. Administrator convened a meeting of the elected members on 16-11-1992. as per Ext. P1 notice dated 9-11-1992. At that meeting, members expressed great concern on the conduct of the Administrator in not giving charge to the elected Board of Directors and they voluntarily assumed the administration of the Bank. That fact was recorded in the minutes book of the Bank. Returning Officer in collusion with the Administrator and fifth respondent, a defeated candidate, removed the used and unused ballot papers without handing them over to the Secretary. Thus, Returning officer violated the mandatory provision contained in R.35(4)of the Rules. Secretary of the Bank, as per Ext. P3, informed the first petitioner of the violation of R.35 (4) of the Rules by the fourth respondent. That fact was brought to the notice of the Joint Registrar of Cooperative Societies by sending Ext. P4. While so, petitioners received a copy of Ext. P5 order from the Arbitrator. That order directed the Returning Officer to produce all the records in connection with the election held on 8-11-1992 along with ballot papers, used and unused, on 26-11-1992 for recounting the votes of the fifth respondent and second petitioner. Ext. P5 order was passed without notice to the elected members and was in clear violation of the principles of natural justice. The Returning Officer had no power to keep the ballot papers with him and he could not have been directed by the Arbitrator to produce the used and unused ballot papers before him for recounting.

(3.)FOURTH respondent, Returning Officer, did not file any counter affidavit in the Original Petition, in the Writ Appeal, he filed affidavit dated 8-2-1993. It was averred therein that the counting of votes was completed at 8.35 p.m. on 8-11-1992 and the results were declared at 8.50 p.m. After declaration of the results, used and unused ballot papers were put into two separate boxes and were sealed in the presence of the candidates who were present at that time and the employees of the Bank. Those boxes were handed over to Shri. K. Ramachandran, Senior Clerk of the Bank in the presence of Smt. Chandramathi, Secretary of the Bank (Learned Additional Advocate General, who was representing the 4th respondent, stated that the averment that the boxes were handed over to Shri. K. Ramachandran, Senior Clerk, in the presence of Smt. Chandramathi, Secretary of the Bank, is not correct, because Smt. Chandramathi was not available at that time). He went on to state that as per order dated 19-11-1992 of the Arbitrator (Ext. P5), he took the two boxes from the Bank for being produced before the Arbitrator. By the time, all proceedings before the Arbitrator was stayed by this Court. So, boxes were not produced before the Arbitrator. It is stated: -
"Eventhough I took the boxes back to the Bank to entrust the same with the Bank, the Secretary and the Senior Clerk of the Bank refused to receive the same. Hence the two boxes are kept the office of the Assistant Registrar of Coop. Societies (General), Karunagappally in my own custody".

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