Patnaik, J.:— Both the original petitions were heard together as common questions of law are raised and this judgment shall govern both the cases.

2. The questions that arise for consideration are:

(1) Whether the Returning Officer appointed under Rule 35 of the Kerala Co-operative Societies Rules, 1969 has the power to make an enquiry into the question of eligibility of a voter before the publication of the final list of voters to elect members of a committee of the Society if and when an objection under Rule 35(3)(b) of the Rules is received in this regard and if so what is the scope of the enquiry.

(2) Wether in these cases, there was any scope to hold an enquiry before publication of the final list of voters.

3. Petitioners in both the cases are respectively the members of the Ayyanthole Service Co-operative Bank Ltd. Ayyanthole, Thrissur District and Kanjikkulam Service Co-operative Bank Ltd., Kanjikkulam, Palakkad District. The respondents are respectively the Joint Registrars of Co-operative Societies, Thrissur and Palakkad, the Senior Inspector of Co-operative Societies, the Managing Committee of Service Co-operative Banks Ltd. Ayyanthole and Kanjikkulam and the Service Co-operative Banks Ltd. Ayyanthole and Kanjikkulam. In pursuance of separate resolutions passed by the Banks the election notification for election as members of the Managing Committee was issued on 1-12-1995. The date of election was fixed to 7-1-1996. The draft voters list was published on 1-12-1995 and objections were invited to be filed on or before 8-12-1995 (Ext. P2). Petitioners have filed their objections on various grounds. It was stated that the persons who have not attained the age of 18 are included in the voters list. Many of them are members of similar Co-operative Societies. Majority of the members are now living outside the area of operation of the Banks and are permanent residents elsewhere. Some of them are debtors. The Banks have not given membership to the deserving persons and undeserving members have been given the membership. The list has been prepared contrary to bye-laws. They requested the Returning Officer to hold an enquiry and prepare the final voters list in accordance with the provisions of the Co-operative Societies Act, Rules and the bye-laws of the Society (Ext. P3). By Ext. P4 in O.P No. 19282 of 1995, the Returning Officer informed that he had sent a letter to the committee of the Bank requesting to consider the objections to the draft voters list and to take urgent action thereon for making modifications in the draft voters list. The Banks replied that the draft voters list is not vitiated by any irregularity and there is no merit in the complaint. Since the voters list could not be modified without the approval of the committee of the Bank, the final voters list was published without making any change in it. Similar such information was conveyed to the objectors in O.P No. 19460 of 1995. Being aggrieved by the Returning Officer's letter Ext. P4, the petitioners have prayed for issue of a writ of mandamus directing respondents 1 and 2 to immediately scrutinise the list of members submitted by the third respondent to the Returning Officer for the conduct of election to the 4th respondent-Society, hear objections and delete the names of ineligible members and to hold elections only after the aforesaid scrutiny is made.

4. It is contended by the petitioners that as per the bye-laws of the Society, membership shall not be given to persons residing outside the area of operation of the Society. A large number of persons, whose addresses have been given, being residents of villages which are outside the jurisdiction of the Society, are not qualified voters. The Returning Officer has refused to correct the patent error on the ground that he has no powers. Some of the members, having not attained the age of majority, are ineligible to vote. Unless the names of ineligible members are removed from the voters list, the elections will be reduced to a mockery. That will not be conducive to the interest of the members. If ineligible members are permitted to cast their votes, it will affect the voting pattern and result in manifest injustice.

5. The Returning Officer and respondents 3 and 4 have filed separate statement and counter affidavit. While denying the allegations of the ineligibility of the members included in the voters list, it is stated, inter alia, that so long as a member of the Society is neither expelled nor removed as a member, the Returning Officer cannot deny him the right to vote. Section 20 of the Kerala Co-operative Societies Act, 1969 (for short, the Act) lays down that a member of a co-operative society is entitled to have one vote. It is only under Section 17 of the Act, a member can be removed. The Returning Officer has no such powers. He cannot conduct an enquiry to find out whether a member who was originally admitted is eligible to vote or not. If any existing member is disqualified to be a member of the Society, the petitioners should move the Registrar of the Co-operative Societies to remove his name from the list by raising a dispute under Section 69 of the Act. Since the Returning Officer has no power to cancel the membership of a person, he cannot consider the question as to whether a member is eligible to vote or not. Ext. P3 petition and the list of members filed by the petitioners were considered by the Returning Officer and handed over to the Secretary of the Bank with a direction to rectify the defects if any. The Secretary of the Bank reported that the membership was given only to those who were qualified as per the bye-laws of the Bank and requested the Returning Officer to publish the list without any alteration. Accordingly, the final list was published.

6. When both the cases came up for consideration before a learned single Judge, he observed that there is a conflict between Mathew v. State of Kerala reported in (1992) 2 Ker LT 60 and Alleppey Dist. Co. op. D.S Co-op. Society Ltd. v. Joint Registrar reported in (1994) 1 Ker LT 512 and to resolve the controversy, it is advisable to have the matter heard by a Division Bench. Accordingly, the matter was placed before us for rendering an authoritative decision on the question.

7. In Mathew v. State of Kerala (1992) 2 Ker LT 60, a learned single Judge observed as follows:—

“A question arises whether the power given to the Returning Officer to consider objections to the voters list entitles him to remove any person from the list of voters. It cannot be disputed that any person who has become a member of the society is entitled to vote in the election to the managing committee subject to the provisions contained in the Act, rules and bye-laws. A person who has been admitted as a member within 60 days prior to the date of election or the date of the general body meeting does not have the right to membership or the right to vote at the said election or at the general body meeting. If any person has been admitted in violation of R. 26 which prohibits admission of members or approval of transfer of shares within 60 days prior to the date of election or the date of the general body meeting any objection raised regarding such admission can be looked into by the Returning Officer at the time of consideration of objections contemplated in sub-rule (3)(b) of R. 35. In such a case the person so admitted has no right to membership nor has he the right to vote at the said election or at the general body meeting. This court in Govindan v. Deputy Registrar of Co-operative Societies 1983 Ker LT 1038 : (AIR 1984 Ker 26) held that the mandate contained in R. 26 is in the nature of an injunction or command against the registered society. Any member so admitted or any person in whose favour transfer of share has been approved in contravention of this rule shall not have the right to membership or the right to vote at the said general body meeting or at any meeting held subsequent thereto for the purpose of election. The court was considering the legality of the election conducted with such persons in the voters list. It was held that the consequent election held in breach of the rule should be held to be totally infirm and illegal. It is therefore open to the Returning Officer to consider an objection regarding the inclusion of any member in violation of R. 26 and the claim of a person so admitted to exercise his vote in the ensuing election can be rejected and the final voters list could be prepared without the name of such a member in the list. But the position is different as far as members who had been admitted before the period of sixty days fixed in R. 26 and whose names find a place in the preliminary voters' list. They continue to be members eligible to vote in the election so long as they are neither expelled nor removed from the remembership”.

Rule 35 enjoins a duty on the managing committee in office to prepare a list of members qualified to vote at the election in accordance with the provisions of the Act, the rules and the bye-laws as stood on a date 30 days prior to the date fixed for the poll and supply the same to the Returning Officer. He has to publish copies of the list and invite objections. The final list of eligible voters has to be published by him after considering the objections if any receiving by him. Regarding members admitted in violation of Rule 26 there cannot be any dispute. The Returning Officer can on a perusal of the relevant admission forms and other papers ascertain whether the member was admitted in violation of the rule. Any such objection in that regard can be entertained and if substantiated the name of the member so admitted can be deleted from the list since R. 26 specifies that any person so admitted “shall not have the right to membership or the right to vote at the said election or at the general body meeting.” The Returning Officer is therefore clothed with power under Rule 35 to deny any such member the right to vote and his name has to be deleted from the voters list.

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The Returning Officer has no authority to declare a person ineligible to continue as a member of the Society or to remove the name of any such person from the final voters list prepared by him. The objections contemplated under Rule 35(3)(b) do not include objections relating to ineligibility of a member who had been admitted before 60 days prior to the date of election or the date of the general body.

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The position that emerges is that objection regarding inclusion of names of members admitted after the resolution contemplated under Rule 35(1) can be validly taken before the Returning Officer and he has to entertain that objection and if substantiated the name of such a member has to be removed from the list while preparing the final voters list. But the Returning Officer cannot probe into the eligibility or otherwise of a member who had been admitted before that date. The Act and the rules having conferred to right of expulsion or removal of a member on the managing committee and the Registrar of Co-operative Societies that power cannot be usurped by the Returning Officer in the guise of the authority given to him to consider the objections to the preliminary voters list prepared by the managing committee. The reason is that in the earlier case the person admitted has not become a member and thus not eligible to vote whereas in the latter he had become a member entitled to vote in an election and the consideration is as to his eligibility to continue as a member which is beyond the powers of the Returning Officer.”

8. In Alleppey Dist. Co.-op. D.S Co.-op. Society Ltd. v. Joint Registrar (1994) 1 Ker LT 512 another learned single Judge distinguished the aforesaid decision and observed as follows:—

“After receiving the list the Returning Officer publishes it and hears objections. The Returning Officer is not expected to act mechanically and accept every person listed as eligible to vote. That is why he is called upon to prepare a final list “after considering the objections.” The process of “considering” assume that he takes into account the facts in favour and against the objector's contention and then decides to prepare the final list. Note the words used in clause (b) of sub-rule (3) of R. 35. The Returning Officer shall publish a final list, not of “voters” but of “eligible voters”. In view of the judgment of this court in M.J Mathew v. State of Kerala (1992) 2 Ker LT 60 : (1992) 2 Ker LJ 91 the Returning Officer may not be able to remove from the list the names of ineligible members. But that does not mean that the Returning Officer is enjoined by law to accept the members who have been shown to him to be ineligible. The authority of the Returning Officer to remove from the list, the names of ineligible members is one thing. It is quite another to suggest that he cannot consider whether any members in the list are ineligible. The use of the words “eligible voters” and the words “after considering the objections” necessarily postulates that the Returning Officer is expected to consider the question of eligibility of the voters named in the list. This is different from removing the ineligible members from the list. I am not oblivious to the fact that in M.J Mathew v. State of Kerala (1992) 2 Ker LT 60 : (1992) 2 Ker LJ 91 it has been held that the Returning Officer has no jurisdiction to remove the names on the ground that the persons concerned are ineligible as members. But in this case the question is of the authority of the Returning Officer to consider the question of eligibility and draw the attention of the committee to his tentative finding. In my opinion therefore the Returning Officer does possess the authority to decide whether members listed by the committee are eligible to vote. He acts within his authority when he returns the list of voters to the committee for reconsideration.

As already stated, the process of election assumes that the committee performs its duty of preparing a list of members “qualified to vote” by excluding from the list, members who were ineligible at the time of admission, members who became ineligible later on and the members who have ceased to be members. It is upon fulfilment of this obligation that the committee transforms its roll of members into a list of “members qualified to vote.” The committee has to prepare the list “in accordance with the provisions of the Act, the rules and bye-laws.” The committee cannot shirk its responsibility of examining whether the members proposed to be listed by it are qualified to vote. Nor can the committee be permitted to send a list of unqualified and ineligible members and then turn round and urge that the Returning Officer has no authority to return the list for reconsideration.

If the proposition propounded by the petitioners is accepted, disastrous consequences will follow. No election process can be clean. The committee in power who may have enrolled ineligible members or may have continued deceased members as members, may force the Returning Officer to proceed with the elections on the basis of a list of unqualified members. What is held on the basis of such a list would not be an election.”

9. In Kottappady Service Co-Op. Bank v. Asst. Registrar (1994) 2 Ker LT 506, another learned single Judge has held that the power of the Returning Officer is limited to make the voters list in accord with the membership roll, to supply omissions therein, delete duplications, correct mistakes in the details or remove admittedly dead persons and the like. The power cannot be extended beyond this. The reasons given by the learned Judge are as follows:—

“A member, once admitted, continues to be member unless expelled under Sec. 17 or removed after following the procedure prescribed in Rule 16(3). The power of expulsion or removal is vested in the general body and the managing committee respectively. If a person is thus a member of the society, he is entitled to exercise a vote under Section 20. I do not find anything in the Act or the Rules entitling the Returning Officer to deprive a member of this right of his to vote, on the basis of some alleged ineligibility for membership. What is stated is that the Returning Officer only removes him from the voters' list and not from membership. This is incongruous member of the society without a right to vote in the affairs of the society is not contemplated by Section 20. A member cannot be deprived of this right on the basis of objection raised by somebody, without the affected member having any right of say in the matter. The time left the Returning Officer to finalise the voters' list is very short, say two or three days or even less. Where is the facility for him to make enquiries about the ineligibility or otherwise to be a member? Ineligibility can arise on various grounds a person being a minor, or his being outside the area of operation of the society or his being a member of another similar society and the like. Suppose, in a given case, objection is raised to the inclusion of a person in the voters' list on any one of these grounds, does the Returning Officer have the machinery or the facility to enquire into any of these matters before removing him from the voters' list, and that too within the very short time of two or three days available to him? And what about compliance with the principles of natural justice? The Rules do not provide for notice to the person affected before his name is removed from the voters' list. Even by reading the requirement of natural justice into the rule, where is the time or the facility for the Returning Officer to issue notice to and hear the affected persons before taking any decision on their eligibility. Necessarily, a decision will be taken which will deprive the person of his very valuable right to vote and participate in the affairs of the society without any notice to him. This will be the direct consequence of vesting the returning officer with the power of removing an alleged ineligible from the voters' list, despite his continuing in the membership roll. The damage will be irreparable, as the affected member has no speedy remedy by which to undo the damage within the short time left for the election.”

10. These questions did not arise directly for decision before a Division Bench of this Court in Vasavan v. District Coir Project Officer ((1993) 1 Ker LT 293). However, it has been observed in that decision that for the purpose of Rule 28 of the Kerala Co-operative Societies Rules, 1969 (for short, the Rules) a person may still be a member, even before he acquires a right to vote. Such a right to vote accrues on payment of the full share capital. If the full payment falls within the period mentioned in Rule 28, he cannot vote at any meeting falling within 30 days of such payment.

11. Sub-rules (2), (3)(a) and (b) of Rule 35 of the Rules read as follows:—

“35. Procedure regarding conduct of Election to the Committee of Societies. — The election of the members of the committee of a Society shall be conducted in the following manner.

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(2) The Registrar may on receipt of such resolution appoint a Returning Officer for the conduct of election. The Returning Officer so appointed may be given such remuneration as may be fixed by the Registrar. The Returning Officer shall take necessary steps for the conduct of elections and the committee shall render all necessary help to the Returning Officer for the constitution of the Committee.

3(a) The Returning Officer shall give intimation regarding the details of election of the members of the Committee to all members included in the final list of the voters, to vote at the election of the committee, either in person and obtain their full signature in token of having received the same, or by post under certificate of posting or by publishing such details in two vernacular dailies having wide circulation in the area. A copy of the intimation shall also be affixed on the notice board of the Head Office, and the branches, if any, of the society. The intimation shall contain the following particulars:—

(i) The number of vacancies to be filled up by election;

(ii) Any area or constituency that is specified in the bye-laws from which members are to be elected;

(iii) The date on which, the place at which and the hours between which nomination paper shall be filed by the contesting candidate or by his proposer seconder such dates not being less than seven clear days before the dates fixed for the election;

(iv) the date and hour when the nomination papers will be scrutinised;

(v) the date on which, the place at which and the hours between which, polling will take place.

(b) The committee in office shall prepare a list of members qualified to vote at the election in accordance with the provisions of the Act, these Rules and Bye-laws as stood on a date 30 days prior to the date fixed for the poll and supply the same, to the Returning Officer. The Returning Officer shall publish copies of the list by affixing them to the notice Board at the Head Office of the society and its branches, if any, not less than fifteen days prior to the date fixed for election inviting objections, if any, in the matter, within three days of publication. The list shall specify the admission number, name of the member, name of the Father or Husband and the address of such member. After considering the objections, if any, the Returning Officer shall publish a final list of eligible voters on the Notice Board of the Society and in its branches, if any, not less than ten days prior to the date fixed for the poll. 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.”

In this context, it is pertinent to note Rules 26 and 28 of the Rules. They read as follows:—

“Prohibition on admission of members and transfers of shares on the eve of general meeting:— (1) No society shall admit members or approve the transfer of shares within sixty days prior to the date of election or the date of the general body meeting.

(2) Any person admitted as member and any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said election or at the general body meeting.

28. Registration on the right of vote at the elections:— No member of a society shall be eligible to vote at the meeting fixed for any election to the committee of that society, unless 30 days prior to the date of such meeting he acquires the number of shares for membership as may be provided in the bye-laws of the society of which he is a member.”

Rule 16 of the Rules lays down the conditions to be complied with for admission for membership Rule 20 deals with payment to be made to acquire rights of a member. Rule 26 deals with prohibition for admission to membership within a particular period.

12. Section 16 of the Act contemplated about the persons who may become members. Section 17 lays down the power of the general body of the Society to expel members by passing a resolution if one has acted adversely to the interest of the society. An opportunity of making his representation shall be given to a member before a resolution of expulsion is passed. Section 19 lays down that no member of a society shall exercise the rights of a member unless he has made such payments to the society in respect of membership or has acquired such interest in the society as may be prescribed by the rules or the bye-laws. Section 20 of the Act lays down that every member of a society shall have one vote in the affairs of the society.

13. On a perusal of the decisions in Mathew's case (1992 (2) Ker LT 60) and Kottappady Service Co-op. Bank's case (1994 (2) Ker LT 506), it appears that the learned Judge gave their findings on the basis of the following premises:—

(a) All members of a society ipso facto became voters.

(b) Since the Returning Officer has no power to remove or expel a member from the society, he has no power to make any alteration in the voters list furnished by the Society.

14. We are however, of the view that all voters no doubt must be members, but all members may not necessarily be voters. Merely by virtue of being a member, one does not acquire the right to vote automatically. A member, for example, shall not be eligible to be a voter unless 30 days prior to the date of the meeting held for passing the resolution for the election to the committee of the society, he acquires the number of shares for membership as may be provided in the bye-laws of the society of which he is a member. If a member has not complied with the condition laid down in Rule 28, he does not cease to be a member. What is restricted is his right to vote in the election.

15. The right to vote must be distinguished from admission as a member. While Rules 16 and 20 deal with conditions for admission, Rule 26 deals with prohibition for admission to membership within a particular period. Sections 16, 17, 19 and 20 deal with admission, explusion, suspension of the rights and conferment of right to vote on members of the Society. Vide Vasavan's case (1993 (1) Ker LT 293), Rule 35 of the Rules on the other hand, lays down the duties and responsibilities of the Returning Officer to publish the final list of eligible voters, after considering the objections if any received, against any of the persons listed as voters. If the Returning Officer declares a member to be an ineligible voter, he does not expel him thereby from the membership of the Society. A member who is disqualified as a voter may still continue to be a member of the Society if he is not otherwise disqualified to be a member.

16. Rule 35(1)(d) of the Rules deals with the qualifications for nomination as a candidate for election to the committee. The qualifications prescribed are: he should be eligible to vote, he should possess the necessary qualifications if any specified in the bye-laws of the society for election as a member of the committee and is not disqualified to be member under the provisions of the Act and Rules or a member of the committee under the Rules. Power is given to the Returning Officer under clause (e) to scrutinise the nomination papers and reject the same in case objections are sustained after summary enquiry. If an objection is raised against the inclusion of the name of a person in the voters list as well as against his nomination on the ground that he is a minor and therefore disqualified to be a member and if the contention taken by the respondents that the Returning Officer has no power to enquire into the eligibility of the member to be included in the voters list is accepted, it would certainly lead to an anomalous situation. On the ground of minority of the member his nomination can be rejected for the reason that he is disqualified to be a member but at the same time, his name cannot be removed from the voters list. It has therefore to be taken that the Returning Officer has the power to conduct a summary enquiry when objection is raised regarding the inclusion of a member in the voters list. The power to consider the objections has been conferred on the Returning Officer alone. There is nothing in the Act or Rules to show that he can delegate or abdicate his functions in favour of any authority of the Society. The Returning Officer is required to give his own ruling on the objection. He cannot rule out any objection or sustain it arbitrarily. In order to arrive at a proper decision it is open to him to conduct a summary enquiry to be satisfied about the sustainability or otherwise of the objection. But, he can do so only if the objections are specific and definite against each individual member which can be subjected to verification with reliable materials that may be made available to him by the objectors and the authorities of the Society. He is not expected to make a roving enquiry.

17. It is he who is to be satisfied about the correctness or otherwise of the objections. He cannot simply forward the objections to the authorities of the Society for their verification. If, however, the objections are general or vague in nature or appear to be prima facie baseless, the Returning Officer is not bound to make any enquiry. We are therefore unable to agree wholly with the proposition laid down in Mathew's Case (1992 (2) Ker LT 60) and Kottappady Service Co-op. Bank's Case (1994 (2) Ker LT 506) on this aspect. We approve the observation made by the learned single Judge in Alleppay Dist. Co-op. Society Ltd.'s Case (1994 (1) Ker LT 512) to the extent that the Returning Officer has a duty to make an enquiry into the objections to ascertain the eligibility of a member to vote in an election who is listed in the draft voters list furnished by the Society. But, we do not agree with his observations that the Returning Officer should send the objections along with the draft voters list to committee of the Society to prepare the final list. That would amount to surrender of his functions in favour of the Society, which is not contemplated in Rule 35 of the Rules.

18. In the cases at hand, it appears that the objections in Ext. P3 are very general in nature. No specific and definite allegations have been made against individual members listed in the voters list. The Returning Officer is therefore not bound to make an enquiry into such vague objections.

19. For the reasons stated above, we hold that the Returning Officer has the power to make an enquiry into the objections if the same are definite and specific and he should verify them with the materials placed before him by the objectors and the authorities of the Society. In these cases, the objections being vague in nature, there is no scope to hold an enquiry.

With the above observations, we dismiss the original petitions.

Petitions dismissed.