A. Abdul Latheef and Another vs Joint Registrar of Co-operative Societies and Others

M. Jagannadha Rao, C.J.—This Writ, Petition has been referred by a learned Single Judge of this Court to a Division Bench.

In the Writ Petition, the prayer is that election to the general body of the 3rd Respondent-society shall not be held unless all the members of the society have been furnished with share certificates. It is also prayed that unless the members are required to bring the share certificates at the time of voting for the purpose of correctly identifying the voters, election to the general body of the society shall not be held. The general body of the society has passed a resolution to this effect as per Ext. P-1 dated 20th July 1989. The Petitioner wants Respondents'' 1 and 2, namely, the Joint Registrar of Co-operative Societies, Kollam, and the Returning Officer, to implement the above said resolution of the General body of the society. The learned Single Judge was of the view that imposition of such a condition on a voter to bring share certificates for the purpose of correctly identifying the voter was not warranted by the provisions of the Kerala Co-operative Societies Act, or by Rule 35 of the Rules. The learned Single Judge was not inclined to accept the view expressed by Anr. learned Single Judge of this Court in O.P. No. 7414 of 1989. In that case a direction was given to the Returning Officer to state in the notice of election that each voter should bring his share certificate to establish his identity. Of course, it was not stated, in the order in O.P. No. 7414 of 1989 what would happen if the share certificate was not produced by the voter.

A question whether such a condition could be imposed, in addition to the procedure mentioned in Rule 35 of the rules came up for consideration before Sukumaran, J. in Gopalan v. Joint Registrar of Co-operative Societies 1985 KLT 446. In that case, such a condition was imposed by the paid-Secretary of the Society. The learned Single Judge after referring to Rule 35(j) of the rules, which deals with the procedure for identification of the voter, observed as follows:

Thus the rules have stipulated the manner in which the identity of the voter is to be established in the case of a dispute. When a rule has specifically stipulated the mode of identifying a voter, (by employing an election agent) the Secretary of the Society cannot incorporate a different provision in a notice relating to election and make it obligatory for a voter to produce the share certificate for exercising his franchise. Such a requirement will be totally unreasonable and contrary to the spirit of any lair election procedure. For a variety of reasons, a member ''may not be in possession of the share certificate. So long as the rules do not insist on the production of the share certificate as a condition precedent for the exercise of the franchise, such a stipulation cannot be imposed by any authority whatever. It therefore follows that the impugned stipulation was totally unjustified arid unauthorised and therefore illegal and invalid.

We are in entire agreement with the view expressed by Sukumaran, J. in Gopalan''s case 1985 KLT 446 .

The learned Counsel for the writ Petitioner, however wanted to distinguish the above said case on the ground that in the present case, it was the resolution of the general body required that a member should produce share certificate at the time of exercising his franchise, and that this is not a case where the paid-Secretary had given any unauthorised direction. We are of the view that the above said facts does not bring about any distinction, between this case and Gopalan''s case 1985 KLT 446. The question will be whether a person who does not bring the share certificate at the time when he exercises his franchise, could be prevented from casting his vote, and thereby be denied his franchise. The right to franchise is granted by the Act, and it is the procedure indicated by the Act that has to be followed, and it should not be open either to the paid-Secretary or to the general body to impose a condition which might result in the denial of right to franchise to a voter.

In so far as the directions given by a learned Single Judge of this Court in O.P. No. 7414 of 1989 are concerned, it looks to us that there was, in that case, no objection to the direction which the learned Single Judge gave, namely, that the share certificates should be brought by the voter for the purpose of identity at the time of election. However, if the learned Single Judge wanted to lay down any principle to that effect, we are not in agreement with the view so expressed.

For the aforesaid reasons, the O.P. is dismissed.