Kerala High Court
Thomas Jacob Aged 58 Years vs State Of Kerala on 23 December, 2010
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37391 of 2010(Y)
1. THOMAS JACOB AGED 58 YEARS, S/O.CHACKO,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. MALLAPPALLY TALUK MERCHANT CO-OPERATIVE
3. THE RETURNING OFFICER, MALLAPPALLY TALUK
4. STATE CO-OPERATIVE ELECTION COMMISSION,
For Petitioner :SRI.VIVEK VARGHESE P.J.
For Respondent :SRI.ANIL SIVARAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :23/12/2010
O R D E R
C.T. RAVIKUMAR, J
- - - - - - - - - - - - -- - - - - - - - - - - - - - - -
W.P.(C)No. 37391 OF 2010
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 23rd day of December, 2010
J U D G M E N T
The petitioner is a member of the second respondent society which is registered under the provisions of the Kerala Co-operative Societies Act(for short 'the Act'). This writ petition has been filed mainly with a prayer to issue a writ in the nature of certiorari quashing Exts.P1 and P2 and also with further prayer in the nature of mandamus commanding the second respondent to amend the bye-laws of the society in accordance with law. If election is held in terms of Ext.P2 notification it would violate the amended provisions under Section 28A of the Act, it is contended. Section 28 A reads thus:
(i) in sub-section (1), for the words "one seat for a woman member", the words "three of the total seats for women members" shall be substituted;
(ii) for sub-section (3), the following sub-section shall be substituted, namely:-
"(3) Where there is no representation of women or members belonging to Scheduled Castes or Scheduled Tribes in the committee of a Society including those of the societies formed exclusively for the benefit of women and for persons belonging to Scheduled Castes or Scheduled WPC.37391/2010 : 2 : Tribes, the Government or the Registrar shall nominate women and persons belonging to Scheduled Tribes to the elected committee from among the members of such societies".
It is thus obvious from the above amendment brought in to Section 28A that it provides for reservation of 3 seats for women in the committee of a society. The said amendment came into force with effect from 28.4.2010. Ext.P2 notification would reveal that it was issued on 19.11.2010. Thus it is obvious that the notification has been issued subsequent to coming into force of Ext.P4. Merely because the bye-laws of the second respondent society was not amended in terms of Ext.P4 amendment election cannot be permitted to be conducted in terms of the bye-laws ignoring the statutory amendment. The additional 5th respondent is not bound by the bye-laws, but bound by the provisions of the Act. In short, since Ext.P2 notification has been issued subsequent to the amendment to Section 28A of the Act the additional 5th respondent could not have and would not have issued Ext.P2 ignoring the amended provisions of section 28A and in tune with the provisions under the bye-laws. I am fortified in my view by a decision of this Court reported in Azeeskutty v. Returning Officer(2008(4) KLT165).
WPC.37391/2010 : 3 :
2. I have heard the learned counsel appearing for the petitioner, the learned Senior Counsel appearing for the second respondent and also the learned Government Pleader.
3. There is no dispute with respect to the position of law in the matter. Since Section 28A is a legislative mandate it would definitely overrule the provisions under the bye-laws and rules as also other provisions of the Act. Therefore, any election subsequent to Ext.P4 to any society could be held only in terms of the amended provisions under section 28A of the Act. In short, no election could be permitted to be held based on Ext.P2 notification in such circumstances, in as much as it is not in tune with the mandatory provisions under Ext.P4. Therefore, Ext.P2 is liable to be interfered with. Accordingly, Ext.P2 is set aside. In view of the circumstances obtained in this case, there will be a further direction to the additional 5th respondent to issue a fresh notification for conducting election to the Managing Committee of the second respondent within a period of two weeks from the date of receipt of a copy of this judgment in terms of Ext.P4, that is, the mandatory provision under 28A reserving 3 seats in the Managing Committee of the second respondent for women. After issuing such a WPC.37391/2010 : 4 : notification, the additional 5th respondent shall see that the election based on the said fresh notification is concluded within the statutorily prescribed period.
Disposed of accordingly.
Sd/-
(C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge In page 2 of the judgment dated 23.12.2010 in WP(C) 39391/2010, after the sentence, "Merely because the bye-laws of the second respondent society was not amended in terms of Ext.P4 amendment election cannot be permitted to be conducted in terms of the bye-laws ignoring the statutory amendment". The following sentence is inserted.
"In that view of the matter and in view of the order I propose to pass I am inclined to suo motu implead the Assistant Registrar (General) of Co-operative Societies, Mallappally as the additional 5th respondent in this writ petition."
Vide Order dated 24/06/2011 in WP(C) 37391/2010 Sd/-
Registrar(Judicial)