Kerala High Court
Azeeskutty vs The Returning Officer on 29 August, 2008
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24649 of 2008(H)
1. AZEESKUTTY,
... Petitioner
Vs
1. THE RETURNING OFFICER,
... Respondent
2. THE THIRUVALLA TALUK CO-OPERATIVE
For Petitioner :SRI.T.P.PRADEEP
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :29/08/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
-------------------------------------------
W.P(C).No.24649 OF 2008
-------------------------------------------
Dated this the 29th day of August, 2008
JUDGMENT
"C.R."
The petitioner is a member of the second respondent, a rubber marketing co-operative society governed by the provisions of the Kerala Co-operative Societies Act, 1969 and the Kerala Co-operative Societies Rules, 1969, hereinafter, respectively, the 'Act' and 'Rules', for short. He challenges Ext.P2 notification for election to the committee of that society. While the writ petition was filed contending that the fixation of the standards and distribution of seats in terms of Ext.P2 was in violation of Ext.P3 bylaws, it has come out that those bylaws were amended some time in 1995 and approval granted by the competent authority on 18.3.1995. On the basis of even that amendment, it is pointed out by the petitioner that the notification is for election to seats in excess of the total number of seats which could be filled up in terms of the bylaws. WPC.24649/08
Page numbers
2. I have heard learned counsel for the petitioner, learned counsel for the second respondent and the learned senior Government Pleader on behalf of the first respondent.
3. Having regard to the nature of the contentions, it is apposite to quote clause 5.01 of the by-laws as amended.
Subject to such resolution as the General Body may from time to time pass the executive management of the affairs of the society shall vest in a Board Directors. The Board of Directors shall consist of fourteen members of whom eleven elected members and two nominees of the Rubber Board. Out of the eleven members to be elected ten shall be the representatives of A class members and one shall be the representative of C class members.
The Managing Director shall be ex-officio members (sic) of the Board. A class members duly elected by the General Body from the wards as noted below by ballot as per rules.
WARD NAME OF PANCHAYATH PERSONS TO BE ELECTED I Kottangal 4 II Kottanadu, Auyroor, Thottapuzhassery 3 III Puramattom, Eraviperoor Koipuram, Ehumatoor 2 WPC.24649/08 Page numbers IV Mallappally, Anicadu, Kunnamthanam, Kallooppara, Kuttoor, Nedumpuram, Kadapr, Niranam, Peringara, 1 Kaviyoor, Thiruvalla Municipality.
3. The impugned Ext.P2 notification is issued for election of 13 members to the committee, of which, 12 are from among A class members and one from among C class members. Out of the 12 from A class members, the segregation among the constituencies therein has been appropriately made in terms of the bylaws' provision, allotting the number of vacancies to be filled up on the basis of the grouping of votes. There is no dispute about this. The notification also provides for election of one member from among members belonging to the scheduled castes-scheduled tribes communities and one woman representative, to give effect to the provision for reservation. The election towards reserved seats is to be made by treating the entire A class members as the electoral college. Thus, 13 members are to be elected; two members from reserved category and 10 members otherwise, from A class; and one C class member.
WPC.24649/08
Page numbers
14. However, clause 5.01 of the amended bylaws provides for a committee of 14 members, of whom, 11 have to be elected and two, to be nominees of the Rubber Board and the committee has also to have the Managing Director of the society as an ex-officio member. On this basis, it is argued on behalf of the petitioner that the election could be conducted only as regards 11 seats and the notification of the election of 13 seats is invalid.
5. If 10 members are elected from A class members without applying the prescription of reservation as contained in Section 28 A of the Act, and one member is elected to represent the C class members, the prescription in clause 5.01 of the bylaws would stand satisfied, because, by the election of those 12 members, there will still be room for two members from the Rubber Board and for the Managing Director to be an ex-officio member of the Board. The question would be as to how there would be room for satisfying the rule of reservation contained in Section 28 A of the Act. While the provision for the Managing Director to be an ex-officio member is a prescription of the WPC.24649/08 Page numbers bylaws, that is not in terms of any provision in the Act and the Rules. Except in cases where nomination is a mandate of the Act and the Rules, an ex-officio member would also remain only as an essential appendage of the committee that would otherwise stand to satisfy the prescriptions of the Act and the Rules. This is because the bylaws have to conform to the Act and the Rules. Section 28 A provides for reservation of one seat for a woman member and one seat for a member belonging to scheduled castes-scheduled tribes, notwithstanding anything contained in the Act, the Rules or the bylaws. Therefore, whatever be the provision in the Rules or the bylaws or elsewhere in the Act, the legislative mandate contained in Section 28 A would take a precedence, to enjoin that there shall be two such members. No bylaws can overpower the provisions of the statute and the mandate of Section 28 A has to operate, in its full force and effect. It would be equally open to the society to leave the existing pattern in tact; and yet, satisfy the obligatory reservation, as held by this Court in Gopinathan Nair v. Senior Inspector of Co-operative Societies (1986 KLT 1269). WPC.24649/08
Page numbers The presence of members envisaged by Section 28 A can be effectuated even without any amendment to the bylaws. This means that, notwithstanding the pegging of the total number of members of the committee at 14 in terms of the by-laws, the woman member and the member to be elected from the scheduled castes-scheduled tribes can stand in excess of that bench mark. The question that would then arise would be as to whether such exercise would torpedo the command in Section 28 (1A) that notwithstanding anything contained in the bylaws of a society, the maximum number of members of the committee shall not exceed 15 in the case of primary co-operative societies. As already noticed, Section 28 A is a legislative mandate that overrules not only the provision of the bylaws and Rules, but also all other provisions of the Act. Therefore, that dictate overrules the prescription in Section 28 (1 A) regarding the maximum number of members of the committee. Hence, in giving effect to the reservation in terms of Section 28 A, if the bench mark of 15 members prescribed by Rule 28 (1 A) is exceeded, the same will stand to be one within the permissible limits because the WPC.24649/08 Page numbers legislative intention and direction is to obtain a representative for women and members of scheduled castes-scheduled tribes and that goal has to be achieved notwithstanding anything else contained in the Act itself. Therefore, the requirement of Section 28 A, in the case in hand, can be easily achieved by maintaining those seats to be out of the 14 number bench mark prescribed in the bylaws as the strength of the committee. Viewed in this angle, the impugned notification does not warrant interference.
6. Learned counsel for the petitioner, relying on the decision of the Division Bench of this Court in Thopramkudy Service Co-operative Bank Ltd. v. Assistant Registrar of Co- operative Societies {2001 (2) KLJ 400}, canvasses the position that the benefit of a change in law could accrue only after a consequential amendment is brought to the bylaws. The Bench was considering a case of the amendment of the statutory provision in the Act governing the term of office of a managing committee. By Act 1 of 2000, that term was enlarged from 3 WPC.24649/08 Page numbers years to 5 years. When the bylaws continued to have the term of the committee as three years, this Court took the view that the mere enlargement of the term by amendment of the statute would not confer that benefit on a committee which was elected only for a 3 years' term. That was in consonance with the democratic status of co-operative societies. The principle enunciated in Thopramkudy (supra) would not have applied even to a case where the terms of the existing committee as per the bylaws got reduced by intervening legislative exercise. In so far as the case in hand is concerned, the said principle does not apply. At no rate, could it be held that the prescription of Section 28 A could be achieved only by an amendment to the bylaws, since that statutory provision overrides the bylaws, Rules and even the other provisions of the Act, thereby, also, the statutory provisions governing the making and approval of the bylaws. In fact, such a contention stands repelled also as per the ratio in Gopinathan Nair (supra).
WPC.24649/08
Page numbers
7. For the aforesaid reasons, Ext.P2 notification has been issued in terms of the amended bylaws read with the Act and the Rules and therefore, I find no illegality in it.
In the result, the writ petition fails. The same is accordingly dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, Judge kkb.30/8.