Kerala High Court
The Board Of Directors Of The Malabar vs State Of Kerala on 11 December, 2018
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 11TH DAY OF DECEMBER 2018/20TH AGRAHAYANA, 1940
WP(C).No. 35502 of 2018
PETITIONER:
THE BOARD OF DIRECTORS OF THE MALABAR
REGIONAL CO-OPERATIVE MILK
PRODUCERS UNION LTD.D 89(D)
REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE,
PERINGOLAM, KOZHIKODE-673 571.
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
SRI.ARJUN RAGHAVAN
SRI.JAIBY PAUL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CO-OPERATION (C) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF DAIRY DEVELOPMENT DEPARTMENT
DIRECTORATE OF DAIRY DEVELOPMENT, PATTOM,
THIRUVANANTHAPURAM - 695 004.
3 THE STATE CO-OPERATIVE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM - 695 001.
4 THE KERALA CO-OPERATIVE MILK MARKETING
FEDERATION LTD. (MILMA)
REPRESENTED BY ITS MANAGING DIRECTOR,
MILMA BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695 004.
W.P.(C)No.35502/2018 2
5 THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCES
UNION LTD.NO.89 (P)
REPRESENTED BY ITS MANAGING DIRECTOR,
HEAD OFFICE, PERINGOLAM,
KOZHIKODE - 673 571.
ADDL.R6 TO R8 IMPLEADED
6 ADDL. R6: R. GANGADHARAN
AGED 51 YEARS
S/O.RAMAN, DELEGATE AND PRESIDENT OF
PANTHAPARAMBU KSHEEROLPADAKA SAHAKARANA
SANGHAM, MUDAPALLOOR POST, PALAKKAD DISTRICT,
RESIDING AT PAKKAT HOUSE, MUDAPPALLIL POST,
PALAKKAD DISTRICT.
7 ADDL. R7 P. SREENIVASAN
AGED 65 YEARS
S/O. NARAYANAN NAIR, DELEGATE AND PRESIDENT OF
EZHIKULAM KSHEEROLPADAKA SAHAKARANA SANGHAM,
RESIDING AT LAKSHMI NIVAS, POOLAPPARAMBATH,
NANMINDA P.O., KOZHIKODE DISTRICT.
8 ADDL. R8 V. BALAKRISHNAN NAIR
AGED 77 YEARS
S/O. RAMAN NAIR, DELEGATE AND PRESIDENT OF
MAVOOR KSHEEROLPADAKA SAHAKARANA SANGHAM,
RESIDING AT VELLAPPALATH HOUSE, KANNIPARAMBA
P.O., MAVOOR VIA, KOZHIKODE DISTRICT.
(ADDL.R6 TO R8 WERE IMPLEADED AS PER ORDER
DATED 07/11/2018 IN IA.NO.01/2018)
ADDL.R9 IMPLEADED
9 ADDL.R9 THE CHAIRMAN
KERALA CO-OPERATIVE MIL MARKETING FEDERATION
LIMITED (MILMA), MILMA BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695 004.
(ADDL.R9 IMPLEADED AS PER ORDER DATED
27/11/2018 IN IA.NO.02/2018)
W.P.(C)No.35502/2018 3
ADDL.R10 TO R12 IMPLEADED
10 ADDL.R.10. V.P.SIDDIQ,
PRESIDENT, THEKKUMKUTTY KSHEEROLPADAKA
SAHAKARANA SANGHAM, NO.D70 (D) APCOS,
P.O. ALLI, MUKKAM, CALICUT DISTRICT - 673 602.
11 ADDL. R11. SUNNY JOSEPH,
PRESIDENT, MAMPAD KSHEEROLPADAKA SAHAKARANA
SANGHAM LTD. NO.F.1801M APCOS, VADAPURAM P.O.,
676 542, MALAPPURAM DISTRICT.
12 ADDL. R12. RAJEESH,
PRESIDENT, KARASSEERY KSHEEROLPADAKA SAHAKARANA
SANGHAM LTD.NO.D101(D) APCOSE, KARASSERY POST,
MUKKAM VIA, CALICUT DISTRICT - 673 602.
(ADDL.R10 TO R12 WERE IMPLEADED AS PER ORDER
DATED 06/12/2018 IN IA.NO.03/2018)
BY ADVS.
R1 TO R3 BY SRI.RANJITH THAMPAN,
ADDL.ADVOCATE GENERAL
R4, R5 & R9 BY SMT.LATHA ANAND
R6 TO R8 BY SRI.M.SASINDRAN
R10 TO R12 BY SRI.P.C.SASIDHARAN
R4 BY SRI.ARJUN RAJACHANDRAN
R5 BY SRI.JOSEPH SEBASTIAN (PARACKAL)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.35502/2018 4
"CR"
JUDGMENT
The petitioner, the Board of Directors of Malabar Regional Co-operative Milk Producers Union Ltd., represented by its Chairman, has filed this writ petition under Article 226 of the Constitution of India, seeking to declare as unconstitutional sub- section (1K) of Section 28 of the Kerala Co-operative Societies Act, 1969 as inserted by the Kerala Co-operative Societies (3 rd Amendment) Ordinance, 2018, vide Ext.P8 Gazette notification dated 05.10.2018, to the extent it results in the conduct of election to the Managing Committee of the 5 th respondent Union in each revenue districts within its jurisdiction, separately. The petitioner has also sought for a writ of certiorari to quash Ext.P7 communication dated 17.10.2018 issued by the 2 nd respondent Director of Dairy Development, whereby the 5 th respondent Society is asked to convene a general body meeting for the purpose of amending Clause 19.1 of Ext.P1 bye-laws, in consistent with the provisions under Ordinance of 2018, in view of Section 13A of the Kerala Co-operative Societies Act, within 30 W.P.(C)No.35502/2018 5 days.
2. On 31.10.2018, when this writ petition came up for admission, the learned Special Government Pleader sought time to file a statement.
3. On 07.11.2018, when this writ petition came up for consideration, third parties were impleaded as additional respondents 6 to 8, by the order in I.A.No.1 of 2018. The learned Special Government Pleader for the 2nd respondent and also the learned Standing Counsel for respondents 4 and 5 sought time to file counter affidavits and accordingly the matter was adjourned.
4. On 27.11.2018, by an order in I.A.No.2 of 2018, the Chairman of the Kerala Co-operative Milk Marketing Federation Ltd. (MILMA) was impleaded as the additional 9th respondent.
5. A counter affidavit has been filed by the 2 nd respondent Director of Dairy Development, opposing the reliefs sought for in this writ petition. The 5th respondent Union and also the additional 7th respondent have filed counter affidavits.
6. I.A.No.3 of 2018 has been filed by third parties, seeking an order to implead them as additional respondents 10 to 12, which was allowed by the order dated 06.12.2018. W.P.(C)No.35502/2018 6
7. Heard the learned counsel for the petitioner, the learned Additional Advocate General appearing for respondents 1 to 3 and also the learned counsel/Standing Counsel for the respective respondents.
8. The Kerala Co-operative Milk Marketing Federation, the 4th respondent Federation, is the Apex Federation in a three- tier system implemented by the 1 st respondent State, for procurement, processing and distribution of milk and milk products in the State. It has three Regional Co-operative Milk Producers Unions, including Malabar Regional Co-operative Milk Producers Union, the 5th respondent herein. The 5th respondent Union is having two types of membership; ordinary and nominal. Any registered Primary Milk Producers Co-operative Society working within the area of operation of the 5 th respondent Union can be a member. The persons dealing with the 5 th respondent Union, such as suppliers, contractors, selling agents, their sureties, etc. may be admitted by the Board to the nominal membership of the Union. They shall have voting rights. Clause 13.0 of Ext.P1 bye-laws of the 5th respondent Union stipulates that every member shall supply the commodities procured or W.P.(C)No.35502/2018 7 pooled by it, with the exception of what is retained for local consumption within the area of operation of the member society, subject to a minimum quantity as fixed by the Board. As per Clause 13 of Ext.P1 bye-laws, the 5th respondent Union fixed the quantity of milk to be supplied to each society as 75 liters per day, vide Ext.P2 resolution No.15 dated 24.05.1997, which has been approved by the Department.
9. As per Clause 19.1 of Ext.P1 bye-laws, the Board of Directors of the 5th respondent Union shall consist of 14 members elected from among the delegates of ordinary members, women reservation, reservation of Scheduled Caste/Scheduled Tribe, etc. For the purpose of election from delegates of each district, the annual general body meeting will fix in advance, the number of delegates to be elected from each district in proportion to the number of affiliated member societies, so that there shall be at least one from each district and also the district/districts from which the reservation for women and Scheduled Case/Scheduled Tribe shall be made. Clause 20 of Ext.P1 bye-laws stipulates the qualification of the representatives of the ordinary members for contesting in the election to the Board.
W.P.(C)No.35502/2018 8
10. By Ext.P3 resolution No.6 dated 28.07.2018, the Managing Committee of the 5th respondent Union took a decision regarding the representatives of six districts. Since the period of Managing Committee of the Union is going to expire, vide Ext.P4 resolution No.8 dated 22.10.2018, it was decided to conduct election on 23.12.2018 at Choice School, Kunnamangalam in Kozhikode District. Ext.P4 resolution was forwarded to the 3rd respondent State Co-operative Election Commission on 22.10.2018, vide Ext.P5 application (proforma).
11. The Government, vide Ext.P8 notification dated 05.10.2018, i.e., the Kerala Co-operative Societies (3 rd Amendment) Ordinance, 2018, amended Section 28 of the Kerala Co-operative Societies Act by inserting sub-section (1K) to Section 28. Section 28 of the Act deals with appointment of Managing Committee of every society. As per sub-section (1) of Section 28, the general body of the society shall constitute a Committee for a period of five years in accordance with the bye- laws and entrust the management of the society to such Committee. Now, by inserting sub-section (1K) to Section 28, it is provided that notwithstanding anything contained in the Act or W.P.(C)No.35502/2018 9 Rules made thereunder or Bye-laws, in a Regional Milk Producers Union, having jurisdiction over more than one revenue district, the members of the committee representing each district shall be elected by the member societies of that particular revenue district itself from among themselves.
12. In view of the aforesaid amendment, some of the members of the 5th respondent Union submitted Ext.P6 representation dated 13.10.2018 before the Chairman of the Union to convene a general body meeting to amend Ext.P1 bye- laws. The 2nd respondent Director of Dairy Development issued Ext.P7 notice dated 17.10.2018, whereby the 5 th respondent Union is directed to convene a general body meeting for the purpose of amending Clause 19.1 of Ext.P1 bye-laws, in consistent with the Ordinance of 2018, in view of Section 13A of the Act, within 30 days.
13. According to the petitioner, for the purpose of conducting election in each district, the 5 th respondent Union has to arrange separate booths and employees have also to be deputed. Since the election is to a general body, it can be convened only in one location and one place, which is made for W.P.(C)No.35502/2018 10 the convenience of each voter. In the election conducted in the year 2008, out of 667 voters, 657 casted their votes, when the election was conducted in one venue. Similarly, in the election conducted during the year 2013, out of 865 voters, 855 casted their votes. The same procedure is followed by other two regions, i.e., Ernakulam region and Thiruvananthapuram region.
14. In the writ petition, the petitioner would contend that the amendment made to Section 28 of the Act, vide Ordinance of 2018, is against the principle that election is a general body. At present, all the eligible members included in the voters list can cast their votes to each candidate and the election is conducted in one place. But as per sub-section (1K) of Section 28, the candidate members of the Committee representing each district has to be selected from among the members of that district. So, an Electoral Roll consisting of members from each district has to be prepared. Moreover, members of each district can cast their votes only for the representative of that district, which is totally against the concept of election to the Managing Committee of a Co-operative Society.
15. The petitioner would contend that, as per Clause 14.5 W.P.(C)No.35502/2018 11 of Ext.P1 bye-laws of the 5th respondent Union, a special general meeting may be called at any time on a requisition in writing from not less than 1/5th of the ordinary members of Union. Even if no amendment is made to Ext.P1 by-laws, election can be conducted in compliance with the Act and the Rules. Even if there is no amendment to the bye-laws before the next election, the election can be conducted only on the basis of the amended provisions. Therefore, according to the petitioner, the attempt of the State is to adjourn the election on the basis of the amendment and delay the registration of amendment and thus, the election can be postponed. The petitioner would contend further that, in view of the amendment, for the purpose of conducting election in each district, the 5 th respondent Union has to arrange polling booths in each district. The entire election expense has to be met by the Union. There are only 952 eligible members as per the Electoral Roll. Till the last election, there was no demand from any members to conduct election in different venues and at present, the venue is in the middle of the area of operation.
16. In the counter affidavit filed on behalf of the 2nd W.P.(C)No.35502/2018 12 respondent Director of Dairy Development, it is contended that the primary objective of the 5th respondent Union is to conduct activities with the object of making socio-economic development of milk producers, by effectively organising production, processing and marketing of commodities as per the directions of the 2nd respondent Kerala Co-operative Milk Marketing Federation. More than 1100 village level Anand Pattern Dairy Co- operative Societies, situated in six revenue districts, are part of the 5th respondent Union. The jurisdiction of the Union covers Kasaragod, Kannur, Wayanad, Kozhikode, Malappuram and Palakkad. The Union is affiliated to the 4 th respondent State Level Apex Body, along with its sister Unions at Ernakulam and Thiruvananthapuram. In Kerala, Milk Co-operative Societies are functioning as a three-tier structure. Primary Society is functioning at grass root level. Three regional Co-operative Milk Producers Unions and the Apex Society are functioning at the Central level and State level respectively.
17. In support of the amendment made by Ordinance of 2018, the 2nd respondent would point out that, in order to attain self sufficiency in the production of milk, meat and egg, the State W.P.(C)No.35502/2018 13 had constituted an Expert Committee under the Chairmanship of Sri.R.Heli, in the year 2009, and the Committee conveyed its detailed recommendation pertaining to dairy sector in Kerala. In pursuance of the report of the said Committee, the Government constituted an Expert Committee by G.O.(Rt)No.74/2017/DD dated 30.06.2017 to answer the issues relating to dairy sector in Kerala. The Committee appointed as per the said Government Order, consisting of four members, examined the present functioning of the Unions in detail and thereafter, submitted a comprehensive study report on 30.04.2018, on the three-tier Co- operative structure in Kerala. Chapter 13 of the report deals with the observations of the Committee. After considering the present way of election in the Board of Directors, the Expert Committee pointed out certain unhealthy and undemocratic practices in the election of Regional Unions. The observation of the Committee pertaining to Regional Unions is produced along with the counter affidavit as Ext.R2(a), which read thus;
"xix: The representation of dairy farmers in the Board of Directors of the Regional Unions is not fully democratic as, instead of having a District representative duly elected by the representatives of the Dairy Societies of that particular W.P.(C)No.35502/2018 14 District, all the representatives collectively elect the representatives of each of the Districts under the Regional Union. These representatives are often unknown and unfamiliar person. Hence-
(a) In order to make the Board of Directors of Regional Unions truly representative of the farmers, a system where the representatives of the Dairy Co-operatives of each District elect their own representatives would be most appropriate and useful. This is the system followed in other States like Karnataka.
(b) Further, the number of elected Directors should be based on the size of the area of operations of the Union and on the number of active Societies. Idukki District, which produces the maximum quantity of milk in ERCMPU has only three elected Directors, while Ernakulam District with much lower procurement has six elected Directors."
18. Chapter 15 of the report deals with recommendations of the Expert Committee, in which it was specifically required to amend the bye-laws of the Union to enable election of representatives of each district by the members of the particular district itself. The said recommendations of the Expert Committee on Regional Unions and Federations is produced along with the counter affidavit as Ext.R2(b). Recommendation No.2 reads thus;
"2. The Bye-laws of the Regional Unions and Federation require amendments to enable the election of W.P.(C)No.35502/2018 15 representatives of each District by the members of the particular District itself thus making it truly democratic. The induction of new elected members in the Board of Directors of Regional Unions should be ensured and their term as Director should be limited to a maximum of 3 terms by bringing in appropriate amendments in the bye- laws (observation No.xix)."
19. According to the 2nd respondent Deputy Director of Dairy Development, after considering the recommendation of the Expert Committee the State decided to amend Section 28 of the Act. Therefore, the 2nd respondent would contend that the Ordinance of 2018 was promulgated as per the recommendation of the Expert Committee, which highlighted that the present mode of election in the Board of Directors is undemocratic and demanded immediate legislative interference to bring the mode of election in a democratic way. The 2nd respondent would point out that the present mode of election as per Ordinance of 2018 will reduce distance, minimize time, money of the member society and more participation of the members in the election. The 2nd respondent would also point out that similar amendments have been made in respect of Dakshina Kannada District Co- operative Milk Producers Union Ltd., as evident from its bye-laws, W.P.(C)No.35502/2018 16 which is placed on record as Ext.R2(c).
20. In paragraph 12 of the counter affidavit, the 2 nd respondent has provided a table showing the number of Board of Directors in the 5th respondent Union representing six revenue districts and the approximate number of votes. The said table is extracted hereunder;
Districts Malappuram Kozhikode Wayanad Kannur Kasaragod Tota
l
SC/ST 0 1 0 0 0 1
Women 0 0 0 1 1 3
General 2 2 1 1 1 10
Total 2 3 1 2 2 14
Districts
Particulars Palakkad Malappuram Kozhikod Wayana Kannur Kasaragod Total
e d
No.of 301 207 229 53 132 132 1054
Voters
Relying on the said table, the 2 nd respondent would contend that for selecting one person, all the 53 voters in Wayanad district have to travel to Kozhikode to cast their vote. In the same manner, all 132 voters in Kannur and Kasaragod districts have to travel to Kozhikode for selection of two members. This would result in less participation of members in the election process. In order to ensure maximum participation of members in the W.P.(C)No.35502/2018 17 election and also considering the true spirit of the Co-operative democratic principles to select most eligible persons, who are known to the members, Ordinance of 2018 has been promulgated.
21. The 2nd respondent would contend that in view of the amendment made by Ordinance of 2018, the three Regional Co- operative Milk Producers Unions in the State are bound to make suitable amendments in their bye-laws to make them in consistent with the provisions under sub-section (1K) of Section
28. Moreover, as per Section 13A of the Act, no provisions in the bye-laws of a Society shall be inconsistent with the provisions under the Act and the Rules. The 2 nd respondent by Ext.R2(e) letter dated 12.10.2018, directed the 5th respondent Union, invoking Section 66A of the Act, to act in accordance with Section 13A. After considering the request made by the Presidents of 247 member societies of the 5th respondent Union to call a special general meeting to amend Clause 19.1 of Ext.P1 bye-laws in the wake of Ordinance of 2018, the 2 nd respondent issued Ext.P7 notice, whereby the 5 th respondent Union was directed to call a special general meeting. The Union was also W.P.(C)No.35502/2018 18 informed that, if it is unable to convene a special general meeting in time, submission of a declaration by the Board of Directors in the form of an undertaking regarding amendment of the bye-laws within the time limit prescribed, along with a resolution for election will be enough for proceeding further.
22. In paragraph 25 of the counter affidavit, the 2 nd respondent would contend that the meeting of the Board of Directors of the 5th respondent Union was held on 22.10.2018 based on Ext.R2(f) agenda dated 06.10.2018 and Ext.R2(g) additional agenda dated 22.10.2018. The meeting, originally scheduled on 16.10.2018 as per Ext.R2(f) agenda was postponed to 22.10.2018. Neither in Ext.R2(f) nor in Ext.R2(g), any agenda was incorporated to approach this Court against Ext.P7 notice. Therefore, the 2nd respondent would contend that the Chairman of the Board of Directors of the 5 th respondent Union cannot represent the Board of Directors and that, this Writ petition is filed without any authority.
23. The 5th respondent has filed a counter affidavit contending that, as the election is to be held in the general body, there can never be an election outside the general body. W.P.(C)No.35502/2018 19 Therefore, the insistence of the 2 nd respondent in Ext.P7 is not at all sustainable, either in law or on facts. The Managing Committee is bound by the amendment and the amendment never specifies that the election should be conducted outside the general body and therefore, Ext.P7 cannot be said to be valid or reasonable.
24. In the counter affidavit filed by the 7 th respondent, it is contended that the resolution taken by the 5 th respondent Union to conduct election, which was taken only on 22.10.2018, after the promulgation of Ordinance of 2018, can only be conducted in accordance with the amended provision. The said respondent would also point out that, in view of the insertion of sub-section (1K) of Section 28, which is an exception to the general Rule, which starts with the non-obstante clause, relying on sub-section (1) of Section 28, it cannot be contended that the general body of a society to conduct election can be convened only in one location. The 7th respondent would also contend that in the writ petition the challenge is against the provisions of a Statute, as amended by Ordinance of 2018. Any challenge to a Statute should be on valid grounds. In the writ petition, there is no W.P.(C)No.35502/2018 20 allegation of violation of any constitutional provisions. The petitioner has also no case that the amendment is without legislative competence. In the absence of any such grounds, a provision in the Statute is not liable to be invalidated and as such, the challenge made in this writ petition against sub-section (1K) of Section 28 will not stand at all.
25. Having considered the submissions made by the learned counsel on both sides and also the pleadings and materials on record, this Court finds that the amendment brought to Section 28 of the Act by inserting sub-section (1K) was made after taking into consideration the recommendations of the Expert Committee, appointed vide Government Order dated 30.06.2017, which has pointed out certain unhealthy and undemocratic practices in the election of Regional Unions. The Expert Committee in Ext.R2(a) found that in order to make the Board of Directors of Regional Union, truly representative of farmers, the system where the representatives of Dairy Co- operative of each district elect their own representatives would be most appropriate and useful. Further, the number of elected directors should be based on the size of the area of operation of W.P.(C)No.35502/2018 21 the Union and on the number of active Societies. In the said report, as evident from Ext.R2(b), it was recommended that the bye-laws of the regional Unions and Federation require amendment to enable the election of representatives of each district by the members of the particular district itself, thus making it truly democratic.
26. A reading of the preamble of Kerala Co-operative Societies Act, 1969, which was enacted to consolidate, amend and unify the laws relating to Co-operative Societies in the State of Kerala, would show that it is enacted for the orderly development of Co-operative sector in the State. The preamble of the Act, as substituted by Act 1 of 2000 reads thus;
"Preamble:-WHEREAS with a view to provide for the orderly development of the Co-operative sector in the State, it is essential to organise the Co-operative Societies in accordance with Co-operative principles as self governing, democratic institutions, to achieve the objects of equity, social justice and economic development, as envisaged in the Directive Principles of State Policy of the Constitution of India, and to promote scientific and technological development, health care, market intervention and management excellence in the Co- operative Sector it is expedient to consolidate, amend and W.P.(C)No.35502/2018 22 unify the law relating to Co-operative Societies in the State."
27. In State of A.P and others v. McDowell and Co. and others [1996 (3) SCC 709], a Three-Judge Bench of the Apex Court held that a law made by the Parliament or the Legislature can be struck down by courts on two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-II of the Constitution or of any other constitutional provision. Paragraph 43 of the said decision reads thus;
"43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary"
and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of T.N. v. Ananthi Ammal [(1995) 1 SCC 519]. Before, however, we refer to the holding in ourselves of certain basic propositions in this behalf. In the United Kingdom, the Parliament is supreme. There are no limitations upon the power of the Parliament. No Court in the United Kingdom can strike down an Act made by the Parliament on any ground. As W.P.(C)No.35502/2018 23 against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the federal government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two W.P.(C)No.35502/2018 24 grounds mentioned above. In other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An expression used widely and rather indiscriminately - an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Company (87 L.Ed.610). "The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory idea", said the learned Judge. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is W.P.(C)No.35502/2018 25 limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety [See: Council of Civil Service Unions v. Minister for Civil Service (1985 A.C.374) which decision has been accepted by this Court as well]. The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v.
Secretary of State for the Home Department ex p Brind (1991 A.C.696) at 766-67 and 762.] It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section W.P.(C)No.35502/2018 26 11 of the Act provided for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed (SCC P.526, para
7):
"7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
28. In Greater Bombay Co-operative Bank Ltd. v. United Yarn Tex. Pvt. Ltd. and others [2007 (6) SCC 236], the Apex Court reiterated the principle laid down in McDowell's case (supra). Paragraphs 82, 83 and 84 of the said decision read thus;
"82. The constitutional validity of an Act can be challenged only on two grounds, viz. (i) lack of legislative competence; and (ii) violation of any of the Fundamental Rights guaranteed in Part III of the Constitution or of any W.P.(C)No.35502/2018 27 other constitutional provision. In State of A. P. v. McDowell and Co. [(1996) 3 SCC 709] this Court has opined that except the above two grounds, there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds.
83. Power to enact a law is derived by the State Assembly from List II of the Seventh Schedule of the Constitution. Entry 32 confers upon a State Legislature the power to constitute co-operative societies. The State of Maharashtra and the State of Andhra Pradesh both had enacted the MCS Act, 1960 and the APCS Act, 1964 in exercise of the power vested in them by Entry 32 of List II of the Seventh Schedule of the Constitution. Power to enact would include the power to re-enact or validate any provision of law in the State Legislature, provided the same falls in an Entry of List II of the Seventh Schedule of the Constitution with the restriction that such enactment should not nullify a judgment of the competent court of law. In the appeals/SLPs/petitions filed against the judgment of the Andhra Pradesh High Court, the legislative competence of the State is involved for consideration. Judicial system has an important role to play in our body politic and has a solemn obligation to fulfil. In such circumstances, it is imperative upon the Courts while examining the scope of legislative action to be conscious to start with the presumption regarding the constitutional validity of the W.P.(C)No.35502/2018 28 legislation. The burden of proof is upon the shoulders of the incumbent who challenges it. It is true that it is the duty of the constitutional courts under our Constitution to declare a law enacted by the Parliament or the State Legislature as unconstitutional when Parliament or the State Legislature had assumed to enact a law which is void, either for want of constitutional power to enact it or because the constitutional forms or conditions have not been observed or where the law infringes the Fundamental Rights enshrined and guaranteed in Part III of the Constitution.
84. As observed by this Court in CST v. Radhakrishnan [(1979) 2 SCC 249], in considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, a Court may take into consideration matters of common knowledge, reports, preamble, history of the times, objection of the legislation and all other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well- settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative W.P.(C)No.35502/2018 29 intent of exercise of power within constitutional limitations. Where a Statute is silent or is inarticulate, the Court would attempt to transmute the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law."
29. The judgment of the Apex Court in Greater Bombay Cooperative Bank's case (supra) was followed by a Division Bench of this Court in Hari Hara Krishnan G.K. and others v. State of Kerala and others [2014 (4) KLT 576], wherein it was held that if an enactment is challenged as violative of Article 14 of the Constitution of India, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable.
30. In this writ petition, none of the grounds raised by the W.P.(C)No.35502/2018 30 petitioner satisfy the mandatory requirement of the law laid down as above, in the decisions referred to supra. The petitioner has absolutely no case that there is lack of legislative competence to issue Ordinance of 2018, whereby sub-section (1K) is inserted to Section 28 of the Act. The petitioner has also no case that it is in violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. It is trite law that the fundamental rights guaranteed by Article 19 of the Constitution of India can be enforced only by citizens and not by non-citizens. In such circumstances, the petitioner, the Board of Directors of the 5th respondent Union is not legally entitled for a declaration that sub-section (1K) of Section 28 of the Kerala Co-operative Societies Act, to the extent it is under challenge in this writ petition, is unconstitutional. The directions contained in Ext.P7 communication dated 17.10.2018 issued by the 2 nd respondent is only to convene a general body meeting for the purpose of amending Clause 19.1 of Ext.P1 bye-laws of the 5 th respondent Union in consistent with the provisions under Ordinance of 2018, as per the mandate of Section 13A of the Act, which also warrants no interference.
W.P.(C)No.35502/2018 31
31. It is pertinent to note that this writ petition is one filed by the Managing Committee of a Co-operative Society. Though, a Co-operative Society registered under the Kerala Co-operative Societies Act and the Rules made thereunder is a 'body corporate', in view of the provisions under Section 9 of the Act, which provides that the registration of a society shall render it a 'body corporate' by the name under which it is registered, having perpetual succession and a common seal and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted, it is doubtful as to whether the Managing Committee of such a Society can claim the status of a 'body corporate'. I do not propose to consider the said issue in this writ petition since the fate of this writ petition can be decided even without going into that issue.
32. This writ petition is one filed by the Board of Directors of the 5th respondent Union, represented by its Chairman. The statement of facts of the writ petition does not contain an averment to the effect that this writ petition is filed based on any resolution taken by the Board of Directors, authorising the W.P.(C)No.35502/2018 32 Chairman to file writ petition before this Court challenging the constitutional validity of Ordinance of 2018. The affidavit accompanying to this writ petition, which is one sworn to by the Chairman of the Board of Directors does not contain a statement to the effect that he is duly authorised by the Board of Directors to file this writ petition.
33. At this juncture, it is pertinent to note that, along with the counter affidavit filed by the 2nd respondent, the agenda of the meeting of the Board of Directors of the 5 th respondent Union, scheduled on 06.10.2018 is placed on record as Ext.R2(f). The said meeting was adjourned to 22.10.2018 with some more items on the agenda, as evident from Ext.R2(g) additional agenda dated 22.10.2018. Neither in Ext.R2(f) nor in Ext.R2(g), the issue of filing a writ petition by the Board of Directors, challenging the constitutional validity of Ordinance of 2018 is included. Placing reliance on Exts.R2(f) and R2(g) agenda, the 2nd respondent has raised a specific contention in paragraph 25 of the counter affidavit that, as no agenda was included in Ext.R2(f) or R2(g) to approach this Court against Ordinance of 2018, the Chairman has filed this writ petition without any authority. Though the counter W.P.(C)No.35502/2018 33 affidavit of the 2nd respondent is one filed on 07.11.2018, the petitioner has not chosen to file any reply affidavit. Therefore, conclusion is irresistible that this writ petition is one filed without proper authorisation by the Board of Directors of the 5 th respondent Union.
34. One of the contentions raised by the learned counsel for the petitioner is that, without making necessary amendment to the Rules and also the bye-laws of the 5 th respondent Union, the provisions under sub-section (1K) of Section 28 cannot be implemented. In this context, it has to be noticed that sub- section (1K) of Section 28 starts with a non-obstante clause. It is well settled that, non obstante clause is incorporated in a provision with a view to give the enacting part of the provision an overriding effect in the case of conflict and that, while interpreting a non-obstante clause under which the Legislature wants to give overriding effect to a provision, the Court must try to find out the extent to which the Legislature has intended to give one provision overriding effect of another provision.
35. In State (NCT Delhi) v. Sanjay [(2014) 9 SCC 772] the Apex Court reiterated that, a non-obstante clause is a W.P.(C)No.35502/2018 34 legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
36. Therefore, in view of the non-obstante clause contained in sub-section (1K) of Section 28, the provisions under the said sub-section will have overriding effect over other provisions contained in the Act or the Rules made thereunder or the bye-laws of a Regional Milk Producers' Union like the 5 th respondent Union. Therefore, the above contention raised by the learned counsel for the petitioner is legally unsustainable.
In such circumstance, the petitioner is not entitled for the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed.
No order as to costs.
Sd/-
ANIL K. NARENDRAN JUDGE yd W.P.(C)No.35502/2018 35 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE BYELAWS OF THE 5TH RESPONDENT UNION.
EXHIBIT P2 A TRUE COPY OF THE RELEVANT PORTION OF THE RESOLUTION NO.15 DATED 24.05.1997 OF THE PETITIONER, APPROVED BY THE DEPARTMENT.
EXHIBIT P3 A TRUE COPY OF THE RESOLUTION NO.6 DATED 28.07.2018 ALONG WITH COVERING LETTER DATED 07.09.2018, SUBMITTED BEFORE THE 2ND RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE RESOLUTION NO.8 DATED 22.10.2018 OF THE PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE APPLICATION (PROFORMA) DATED 22-10-2018 FORWARDED BY THE PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY PRESIDENTS OF THE MEMBER SOCIETIES BEFORE THE CHAIRMAN OF THE PETITIONER DATED 13.10.2018.
EXHIBIT P7 A TRUE COPY OF THE NOTICE DATED 17.10.2018 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE NOTIFICATION NO.
20842/LEG.H2/2018/LAW DATED 05.10.2018 (ORDINANCE NO.51/2018).
.....Contd W.P.(C)No.35502/2018 36 RESPONDENT'S EXTS:
EXHIBIT-R2(A): TRUE COPY OF THE RELEVANT PAGE OF THE REPORT SUBMITTED BY THE EXPERT COMMITTEE DATED 30.04.2018.
EXHIBIT-R2(B): TRUE COPY OF THE RELEVANT PAGE (CHAPTER 15) OF THE REPORT PERTAINS TO RECOMMENDATION COMMITTEE.
EXHIBIT-R2(C): TRUE COPY OF THE RELEVANT PAGE OF THE BYE-
LAWS OF DAKSHINA KANNADA DISTRICT CO-
OPERATIVE MILK PRODUCERS UNION LIMITED EXHIBIT-R2(D): TRUE COPY OF THE RESOLUTION OF THE COMMITTEE DATED 22.10.2018 ALONG WITH COVERING LETTER DATED 24.10.2018.
EXHIBIT-R2(E]: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 12.10.2018.
EXHIBIT R2(F): TRUE COPY OF THE AGENDA DATED 06.10.2018 EXHIBIT-R2(G): TRUE COPY OF THE ADDITIONAL AGENDA DATED 22.10.2018 EXHIBIT-R2(H): TRUE COPY OF THE ELECTION NOTIFICATION OF COCHIN NAVAL BASE CIVILIAN EMPLOYEES LIMITED ISSUED BY THE ELECTION COMMISSIONER DATED 12.10.2017.
TRUE COPY P.S. TO JUDGE