Decided on July 04,1974



- (1.) The Administrator appointed under S.32 of the Kerala Cooperative Societies Act, 1969 (for briefness, the Act), to manage the affairs of the 1st respondent society in exercise of his powers under sub-s.(4) and in compliance with the provisions of sub-s.(5) of S.32 took steps to constitute a new committee for that society. It is common case that he communicated his decision to hold an election to the 2nd respondent, and that the latter appointed the 3rd respondent as the Returning Officer under R.35(2) of the Kerala Cooperative Societies Rules, 1969 (for short, the Rules). The 3rd respondent issued Ext. P1 notice dated 26-7-1973 convening the general body meeting as on 19-8-1973 for poll. In compliance with R.35(3)(b) of the Rules the list of members qualified to vote was prepared and the same was published on 7-8-1973. However, the election did not take place on that day for the reason that the same was stayed by Munsiff's Court, Alleppey. The stay order was vacated only on 15-10-1973. The 3rd respondent, Returning Officer thereafter issued another notice fixing the date of poll as on 11-11-1973 and stating that the election would be held on the basis of the voters' list published on 7-8-1973. On 11-11-1973 also the election could not be conducted since, in the meanwhile, the District Court, Alleppey on 30-10-1973 had restrained the 3rd respondent from receiving nomination papers and from proceeding with the election. This injunction was dissolved on 30-11-1973. Meanwhile, the 3rd respondent had postponed the date of election to 16-12-1973. Even on that date there was no election because of an order of stay issued by this Court in O. P. No. 4164 of 1973. This O. P. was finally disposed of only on 13-2-1974. This Court directed the Returning Officer to give the petitioner in that writ petition a week's time to file his nomination. The 3rd respondent thereafter issued Ext. P4 notice fixing the date of poll as on 7-4-1974, and notifying that the election would be conducted on the basis of the voters' list published on 7-8-1973.
(2.) Petitioner society who, on 23-10-1973, as is evident from Ext. P2 letter, had been admitted as a constituent member of the 1st respondent society but whose Ext. P3 request dated 10-12-1973 to include its name also in the voters' list was not acceded to by the 3rd respondent, has come up before me praying for the issue of writ of certiorari quashing Ext. P4 notice and all further steps taken pursuant thereto, and for a mandamus directing the respondents to hold the election in compliance with the provisions of R.35 of the Rules. Though notice was ordered on the present O. P. on 4-4-1974, the poll fixed on 7-4-1974 was not stayed by this Court when it admitted the same. The newly elected members have been impleaded as party respondents as per orders on C. M. P. Nos. 5471 and 6272 of 1974. By my order on the application for stay, C. M. P. 5160 of 1974 though I did not stay the election, I had directed that the Board of Directors elected shall not assume charge and that the Administrator shall not hand over charge to the newly elected Board. Therefore, the Administrator is still continuing, and the newly elected Board has not taken over the management of the affairs of the 1st respondent society.
(3.) The learned Counsel for the petitioner society urged mainly two points viz., that the 3rd respondent, the Returning Officer is not competent to fix the date, time and place for the conduct of the election, and secondly, that, in any event, the mandatory provision in R.35(3)(b) of the Rules which requires the preparation of the list of members qualified to vote as on 30 days prior to the date fixed for poll, has not been complied with in the instant case, in that the poll was fixed for, and was conducted on, 7-4-1974 on the basis of a list of qualified voters published on 7-8-1973. I am of the view that the learned Counsel for petitioner is well founded in raising these points.;

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