The petitioner is aggrieved with the election notification issued at Ext.P2. Petitioner contends that Ext.P2 has been issued by the Department and the same being issued after the amendment of Section 28B, by Act 8 of 2013, election notification ought to have been issued by the State Co-operative Election Commission. As per the amendment brought in by Act 8 of 2013, the State Co- operative Election Commission, has been conferred with the power to supervise, direct and control the preparation of electoral rolls and conduct of all elections to the Co-operative Societies. In such circumstances, Rule 35 of the Kerala Co-operative Societies Rules, 1969, conferring power on the Returning Officers, Officers of the Department, to publish an election notification would no more be valid.
2. The petitioner also has a contention that the share value was enhanced and that the petitioner was not permitted to remit the said share value especially since as per the petitioner's contentions, Ext.P3 notice for remittance of share value was made subsequent to the publication of the voters list on 23.07.2014. The 8th respondent, a similarly placed member, who also could not pay the enhanced share value, supports the petitioner.
3. The learned counsel appearing for respondents 5 to 7, who are the earlier members of the Managing Committee, whose term had expired in the year 2012, would submit that the matter is settled inter-parties by a judgment of this court. It is as per the specific directions of this Court in Ext.R5(e) judgment, that the present notification has been published. The original notification was in the year 2012, prior to Act 8 of 2013 and the same is produced as Ext.R5(a). In such circumstances, the learned counsel for the respondent would submit that going by the directions in Ext.R5(e), there is nothing improper in the Returning Officer having published the notification and the election could go on from the stage at which it was interdicted.
4. True, at an earlier instance, the election was notified by Ext.R5(a), the cancellation of which was under challenge before this Court. This Court by Ext.R5(e), noticed the volatile situation, with respect to the election to the respondent Society and noticed that the election process had to be stopped only to avoid the escalating violence. This Court noticing that fact, found that the election had to be continued; whatever the earlier circumstances were. This Court also found that the last date for filing objections to the voters list was on 29.03.2012 and since the Returning Officer had to stop further proceedings on the said date, election had to be resumed from that stage, viz., from the stage of filing of objections to the voters list. It was in such circumstances that the directions were issued in paragraph 5, directing the 2nd respondent to take appropriate steps for conducting the election to the Society, in accordance with law.
5. This Court while passing Ext.R5(e) judgment, did not notice Section 28B which was brought in; in the interregnum. Act 8 of 2013 having conferred the power to supervise, direct and control the preparation of electoral rolls and conduct of all elections, to the Co-operative Societies on the State Co-operative Election Commission; necessarily the Returning Officer, the 3rd respondent herein; the 2nd respondent in the earlier writ petition, could not have issued a notification.
6. It would have been proper for the Government to have filed a review, bringing the amendment to the statute to the notice of this Court. However the fact remains that the Returning Officer himself in his anxiety to comply with the judgment, brought out Ext.P2 notification. In the context of the fundamental error insofar as the Statute having been amended and the Returning Officer having been deprived of the power to publish an election notification, the election convened as per Ext.P2 has to be held to be non-est in the eye of law; despite the directions in Ext.R5(e). This Court by Ext.R5(e) never intended to perpetuate an illegality and the specific directions issued to the 2nd respondent was only due to the amendment not being brought to the notice of this Court. However, the direction to conduct the election from the stage at which the objections to the voters list were to be considered, has to be scrupulously followed.
7. The petitioner and the additional 8th respondent would be given an opportunity to pay the enhanced share value within a period of ten days from the date of production of the certified copy of this judgment, and their membership would be considered to be valid for the present election, if the enhanced share value is paid. It is made clear that, these objections shall be confined to the petitioner and the additional 8th respondent since none else have made a challenge with respect to non payment of the share value. The liberty to the members to file objections to the draft voters list, as indicated in Ext.R5(e), would be available to any member of the Society.
8. The Administrator, The Chowra Fisherman Development and Welfare Co-operative Society DF (T) 792, Adimalathura, Chowra P.O., Thiruvananthapuram, is impleaded suo motu as the additional 9th respondent. The additional 9th respondent shall immediately take a resolution regarding the conduct of elections and the specific date for polling and forward the same to the 2nd respondent, fixing the date of polling within three months from the date of receipt of a copy of this judgment. Ext.R5(a) issued validly by the 3rd respondent herein and the procedure completed with respect to the handing over of the voters list by the Committee to the Returning Officer is found to be proper and in accordance with law. At that point of time, Act 8 of 2013 had not come into force. The State Co-operative Election Commission shall ensure that the notification is published only from the stage of filing of objections to the voters list. The voters list handed over by the Committee then in office, to the Returning Officer, shall be the draft voters list published. It is made clear that the members or any other person as stated in Ext.R5(e) judgment shall have the right to file objections.
The writ petition is allowed, leaving the parties to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN
Judge
Mrcs //True Copy//