V.P.Sasindran vs State Of Kerala on 5 July, 2013

[Cites 27, Cited by 1]

Kerala High Court

V.P.Sasindran vs State Of Kerala on 5 July, 2013

This writ appeal is filed by the petitioner in WP(C) No. 3854/12, which was filed challenging the constitutional validity of the Kerala Co-operative Societies (Amendment) Act, 2012 (Act 13 of 2012). The writ petition was heard by a learned single Judge along with a batch of other writ petitions and the cases were dismissed by judgment dated 5th of July, 2013. It is in these circumstances, this appeal is filed.

2. We heard the learned counsel for the appellant Sri.M.M.Monaye, learned Special Government Pleader Sri.D.Somasundaram appearing for respondents 1 to 3 and the learned standing counsel appearing for the 5th respondent.

3. In so far as this appeal is concerned, amendments to the Kerala Co-operative Societies Act by Act 15 of 1997, Act 3 of 2002, Act 9 of 2009 and Act 13 of 2012 are required to be noted. When the prayer for interim relief in the writ petitions was considered, a learned single Judge passed a detailed order dated W.A. No.1511/13 : 2 :

22nd of February, 2012 declining the interim order prayed for. That order was confirmed in WA No.354/12 and connected cases. In the order, the learned single Judge has traced the legislative history leading to Act 13 of 2012 in para 6 to 20 of the order, which, for convenience, are extracted below for reference.

"6. The term "District Co-operative Bank" was for the first time defined, when clause (ii) was inserted in section 2 of the Act by Act 15 of 1997, with effect from 3.6.1997. Section 2(ii) of the Act as inserted by Act 15 of 1997, is extracted below.

"2(ii) District Co-operative Bank means a central society having jurisdiction over one revenue district and having as its members Primary Agricultural Credit Societies and Urban Co-operative Banks and the principal object of which is to raise funds to be lent to its members, including nominal or associate members."

7. The term "Central Society" was originally defined in section 2(d) of the Act, as follows:

"2(d). Central Society means a society to which moneys from the Principal State Partnership Fund established under section 44 are provided to enable that society to purchase shares in other societies with limited liability."

8. By Act 19 of 1987, section 2(d) of the Act was amended with effect from 25.8.1987. Section 2

(d) of the Act, as amended by Act 19 of 1987, is extracted below.

2(d). Central Society means a society having jurisdiction over one or more Revenue Districts but not the whole of the State as its area of operation and having as its W.A. No.1511/13 : 3 : members only other societies and declared as such by the Registrar or the Government.

9. By section 2(ii) of the Act, introduced by Act 15 of 1997, the term "District Co-operative Bank" was defined to mean a central society having jurisdiction over one revenue district and having as its members, Primary Agricultural Credit Societies and Urban Co-operative Banks and the principal object of which is to raise funds to be lent to its members, including nominal or associate members.

10. The term "nominal or associate member"

is defined in section 2(m) of the Act, as follows:

"2(m) Nominal or associate member means a member who possess only such privileges and rights of a member who is subject only to such liabilities of a member as may be specified in the bye-laws."

11. Section 18 of the Act as it originally stood provided that, a society may admit any individual as a nominal or associate member. Section 18 as it originally stood, is extracted below.

"18. Nominal or associate members:- (1) A society may admit any individual as a nominal or associate member.

(2) A nominal or associate member shall not be entitled to any share, in any form whatsoever, in the assets or profits of the society or to be elected to the committee of a society.

(3) Save as provided in this section, a nominal or W.A. No.1511/13 : 4 :

associate member shall have such privileges and rights of a member and be subject to such liabilities of a member, as may be specified in the bye-laws of the society.

12. By Act 15 of 1997, by which the term "District Co-operative Bank" was first defined in the Act, section 18 of the Act was also amended, by incorporating the following two provisos in sub section (1) thereof.

"Provided that a District Co-operative Bank may admit any Co-operative Society registered under the provisions of this Act, other than Primary Agricultural Credit Societies and Urban Co-operative Banks functioning within its area of operation, as nominal or associate member.

Provided further that the members of a District Co-operative Bank, other than Primary Agricultural Credit Societies and Urban Co-operative Banks, as on the date of commencement of the Kerala Co-operative Societies (Second Amendment) Act 1997, shall become nominal or associate members of such District Co- operative Bank, at such commencement."

Thus, by Act 15 of 1997, on and with effect from 3.6.1997, it became open to a District Co-operative Bank to admit any co-operative society registered under the Act, other than Primary Agricultural Credit Societies and Urban Co-operative Banks functioning within its area of operation, as a nominal or associate member. By virtue of the second proviso to section 18(1) of the Act, all members of a District Co-operative Bank other than Primary Agricultural Credit Societies and Urban Co-operative Banks, as W.A. No.1511/13 : 5 :

on 3.6.1997 became nominal or associate members, of the concerned District Co-operative Bank.

13. Later, by Act 1 of 2000, with effect from 1.1.2000, section 2(ii) was renumbered as section 2 (ia) and section 2(ib) was introduced in the Act, to define the term "Federal Co-operative Society".

Section 2 (ib) is extracted below.

"2(ib) Federal Co-operative Society means a society having more than one district as its area of operation and having individuals and other co-operative societies as its members."

14. By Act 1 of 2000, the following proviso was incorporated in section 18(1) of the Act, as the third proviso.

"Provided also that a Hospital Co-operative Society may admit any other society as nominal or associate member.

Explanation:- The term "hospital co-operative society shall have the same meaning as in the Explanation to the fourth proviso sub-section (1) of section 16."

15. Section 18 of the Act as amended by the Act 1 of 2000, is extracted below.

"18. Nominal or associate members:- (1) A society may admit any individual as a nominal or associate member.

Provided that a District Co-operative Bank may admit any Co-operative Society registered under the provisions of this Act, other than Primary Agricultural Credit Societies and Urban Co-operative Banks functioning within its area of operation, as nominal or associate member.

W.A. No.1511/13

: 6 :

Provided further that the members of a District Co-operative Bank, other than Primary Agricultural Credit Societies and Urban Co-operative Banks, as on the date of commencement of the Kerala Co-operative Societies (Second Amendment) Act 1997, shall become nominal or associate members of such District Co- operative Bank, at such commencement."

Provided also that a Hospital Co-operative Society may admit any other society as nominal or associate member."

Explanation:- The term "hospital co-operative society shall have the same meaning as in the Explanation to the fourth proviso sub-section (1) of section 16.

(2) A nominal or associate member shall not be entitled to any share, in any form whatsoever, in the assets or profits of the society or to be elected to the committee of a society.

(3) Save as provided in this section, a nominal or associate member shall have such privileges and rights of a member and be subject to such liabilities of a member, as may be specified in the bye-laws of the society.

16. Later, by Act 3 of 2002, section 2(ia) of the Act defining the term "District Co-operative Bank" was again amended, with effect from 4.5.2002. Section 2(ia) of the Act, as amended by Act 3 of 2002, reads as follows:

"2(ia) District Co-operative Bank means a Central Society, the principal object of which is to raise funds to be lent to its members, with jurisdiction over one revenue district and having as its members any type of primary societies and Federal and Central Societies having headquarters in such district."

By the said definition, any type of primary society W.A. No.1511/13 : 7 :

and federal and central societies having headquarters in the revenue district over which the district co-operative bank has jurisdiction became members of the District Co-operative Bank concerned. By Act 3 of 2002, the first and second provisos to section 18 (1) of the Act were omitted and the word "also" occurring in the third proviso to section 18 (1) was omitted. The constitutional validity of Act 3 of 2002, was canvassed before this Court in O.P.No.12439 of 2002 and connected cases. By judgment delivered on 7.1.2003 in Alappuzha District Co-operative Bank Ltd. v. State of Kerala (2003 (1) KLT 297) a learned single Judge of this Court upheld the validity of Act 3 of 2002. The learned single Judge held that Act 3 of 2002 was enacted to take away the impact of Act 15 of 1997, which restricted the membership in District Co-operative Banks to Primary Agricultural Credit Societies including Farmers Service Co-

operative Banks and Urban Co-operative Banks and kept out Primary Co-operative Societies and Federal and Central Co-operative Societies having headquarters in the district, from the membership of District Co-operative Banks.

17. Later, by Ordinance No.62 of 2007, which was replaced by Act 9 of 2009, section 2(ia) of the Act was again amended with effect from 11.12.2007 W.A. No.1511/13 : 8 :

and the definition of the term "District Co-operative Bank" as it obtained prior to Act 3 of 2002, was restored. Section 2(ia) of the Act as amended by Ordinance No.62 of 2007 (Act 9 of 2009), reads as follows:

"2(ia) District Co-operative Bank means a Central Society having jurisdiction over one revenue district and having as its members Primary Agricultural Credit Societies and Urban Co-operative Banks and the principal object of which is to raise funds to be lent to its members, including nominal or associate members."

18. By Ordinance No.62 of 2007 (Act 9 of 2009), the following provisos were incorporated in section 18(1) of the Act, before the then existing proviso (the original 3rd proviso) and they read as follows:.

"Provided that a District Co-operative Bank may admit any Co-operative Society registered under the provisions of this Act, other than Primary Agricultural Credit Societies and Urban Co-operative Banks functioning within its area of operation, as nominal or associate member.

Provided further that the members of a District Co-operative Bank, other than Primary Agricultural Credit Societies and Urban Co-operative Banks, as on the date of commencement of the Kerala Co-operative Societies (Amendment) Act, 2008 shall become nominal or associate members of such District Co-operative Banks, at such commencement."

19. The effect of the above amendments was that, membership in District Co-operative Banks was again limited to Primary Agricultural Credit Societies W.A. No.1511/13 : 9 :

and Urban Co-operative Banks. Other types of co- operative societies which were members on the date of commencement of Ordinance No.62 of 2007 (Act 9 of 2009) became nominal or associate members.

The validity of Ordinance No.62 of 2007 was canvassed in this Court in W.P.(C) No.37452 of 2007 and connected cases. By judgment delivered on 18.4.2008, in Philip v. State of Kerala (2008 (2) KLT 555) a Division Bench of this Court, of which I was a member, upheld the amendment and repelled the challenge to the Ordinance. The Division Bench of this Court in Philip v. State of Kerala (supra) held as follows:

"13. The point to be decided is whether the legislative action to segregate the members of the DCB into two groups will stand the test of Art.14. According to the petitioner, all the co-operative societies belong to a homogenous class. Their further classification based on the nature of their business is unjustified. There is no intelligible differentia between the two groups of societies and the said classification has got no rational nexus with the object sought to be achieved by the KCS Act, which is orderly development of the co-operative movement, as is evident from the preamble of the Act.

14. The respondents, on the other hand, would submit that the Primary Agricultural Credit Societies and Urban Co-operative Banks form a separate group. They are engaged in agricultural credit activities and banking respectively. They raise funds for the above activities. There are other societies, which work in specified and restricted fields. For example, milk societies are meant only for milk producers. Housing societies are meant only for those who intend to purchase a house or land for constructing a house. Similar is the case of Serifed, W.A. No.1511/13 : 10 :

Matsyafed etc. There is a clear distinction between the societies engaged in agricultural credit and banking and other societies engaged in various other activities. There is a clear intelligible differentia between them. The respondents also submit that it is not proper to give membership to all sorts of societies in the DCB other than the above said societies engaged in raising funds for Agricultural credit and banking. The new provisions help the orderly development of the co-operative movement. Thus, the said classification has got a rational nexus with the object sought to be achieved, it is submitted.

15. We think that the wisdom of the legislature should prevail. Its representatives are the best judges of what is good for the people. If the legislature thinks that a particular type of societies alone should be admitted as members of the DCB, it has to be recognised as the law of the land. If the legislature thinks that some other type of societies should also be admitted to the membership of the DCB, it has also to be recognised as the law of the land. This Court cannot sit in appeal over the wisdom of he legislature. Here, though what is impugned is only an Ordinance, the above principles will squarely apply. In this context, we think, it is quite apposite to quote a few authorities on this aspect.

(emphasis supplied) xx xx xx

18. The above decisions in felicitous words highlight the principle that the courts should be slow to interfere or tinker with legislative wisdom. The people of our State should be conceded the freedom to decide what law should govern them. Their representatives in Legislative Assembly can pass any law, subject, of course, to the constitutional limitations. The Government having majority in the Legislative Assembly, should also be conceded the same degree of freedom to legislate by issuing an Ordinance. Here also, the power has to be exercised, subject to the constitutional limitations. The courts should respect the judgment and wisdom of the W.A. No.1511/13 : 11 : legislature on social and economic issues, reflecting the will of, "we the people". The Judges, however learned or erudite they may be, may not substitute their judgment for that of the legislature."

20. By the impugned Ordinance, the position as it obtained prior to Act 9 of 2009 has been restored. As per the impugned Ordinance, section 2 (ia) of the Act has once again been amended and the definition of term "District Co-operative Bank"

as in Act 3 of 2002, has been restored. Section 18 (1) of the Act has also been amended by omitting the first two provisos which were reintroduced by Act 9 of 2009 and the word "also", occurring in the third proviso, which was initially deleted by Act 3 of 2002 and was reintroduced by Act 9 of 2009, stands deleted. Section 2(ia) and section 18 of the Act as amended by Ordinance No.12 of 2012, are extracted below:-

"2(ia). District Co-operative Bank means a Central Society, the principal object of which is to raise funds to be lent to its members, with jurisdiction over one revenue district and having as its members any type of primary societies and Federal and Central Societies having headquarters in such district."

18. Nominal or associate members:- (1) A society may admit any individual as a nominal or associate member.

Provided also that a Hospital Co-operative Society may admit any other society as nominal or associate member."

W.A. No.1511/13

: 12 :

Explanation:- The term "hospital co-operative society shall have the same meaning as in the Explanation to the fourth proviso sub-section (1) of section 16.

(2) A nominal or associate member shall not be entitled to any share, in any form whatsoever, in the assets or profits of the society or to be elected to the committee of a society.

(3) Save as provided in this section, a nominal or associate member shall have such privileges and rights of a member and be subject to such liabilities of a member, as may be specified in the bye-laws of the society."

4. Before us, two contentions were urged by the learned counsel for the appellant. The first contention raised was that since the constitutional validity of Act 9 of 2009, brought into force w.e.f. 11/12/2007, was upheld by this Court in Philip v. State of Kerala (2008(2) KLT 555), the legislature acted arbitrarily and in violation of Article 14 of the Constitution of India in again amending the Act by Ordinance 18/2012, which was replaced by Act 13/2012 and thus restoring the statutory provisions that was introduced by Act 3 of 2002 and repealed by Act 9 of 2009.

5. The second contention raised was that by virtue of Section 5(1)(a) and 5(1)(b) of Act 13 of 2012, the nominal W.A. No.1511/13 : 13 :

members and associate members of the District Co-operative Banks who formed one class are again artificially classified and those falling within section 5(1)(b) are discriminatively treated. Both these contentions were controverted by the learned Special Government Pleader appearing for respondents 1 and 2 who was supported by the learned standing counsel appearing for the 5th respondent.

6. We have considered the submissions made.

7. Before we deal with the contentions raised, we feel it appropriate to make reference to paragraphs 46 to 48 and 67 of the Apex Court judgment in Govt. of A.P v. P.Laxmi Devi {(2008) 4 SCC 720}, where, the Apex Court has laid down the scope of judicial review of legislations.

"46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways, e.g. if a State legislature makes a law which only Parliament can make under List I to the Seventh Schedule, in which case it will violate W.A. No.1511/13 : 14 : Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the Court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto vs. State of Kerala, AIR 1979 SC 83 (para 6). Also, it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.

47. In a dissenting judgment in Bartels vs. Iowa, 262 US 404 412(1923), Holmes, J. while dealing with a State statute requiring the use of English as the medium of instruction in the public schools (which the majority of the Court held to invalid) observed, "I think I appreciate the objection to the law but it appears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the W.A. No.1511/13 : 15 :

United States prevents the experiment being tried".

48. The Court certainly has the power to decide about the constitutional validity of a statute. However, as observed by Frankfurter, J. in West Virginia vs. Barnette 319 U.S. 624 (1943), since this power prevents the full play of the democratic process it is vital that it should be exercised with rigorous self-restraint."

"67. Hence if two views are possible, one making the provision in the statute constitutional, and the other making it unconstitutional, the former should be preferred vide Kedarnath Singh vs. State of Bihar, AIR 1962 SC 955. Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the Court should do so vide G.P. Singh's Principles of Statutory Interpretation, 9th Edition, 2004 page 497. Thus the word "property" in the Hindu Women's Right to Property Act, 1937 was construed by the Federal Court in Hindu Women's Rights to Property Act, 1937, In re AIR 1941 FC 72 to mean "property other than agricultural land", otherwise the Act would have become unconstitutional".

W.A. No.1511/13

: 16 :

That apart, in the Division Bench judgment in Philip's case (supra), in paragraph 15 to 18 of the judgment, the Court held thus;

15. We think that the wisdom of the legislature should prevail. Its representatives are the best judges of what is good for the people. If the legislature thinks that a particular type of societies alone should be admitted as members of the DCB, it has to be recognised as the law of the land. If the legislature thinks that some other type of societies should also be admitted to the membership of the DCB, it has also to be recognised as the law of the land. This Court cannot sit in appeal over the wisdom of the legislature. Here, though what is impugned is only an Ordinance, the above principles will squarely apply. In this context, we think, it is quite apposite to quote a few authorities on this aspect.

16. The Apex Court in R.K.Garg v. Union of India ((1981) 4 SCC 675) held as follows:

"7. .....................the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds. The presumption of constitutionality is indeed so strong that in order to sustain it, the Court may take into consideration W.A. No.1511/13 : 17 :

matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud (354 US

457) where Frankfurter, J. said in his inimitable style:

'In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to W.A. No.1511/13 : 18 :

reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events-self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.' The Court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry'; 'that exact wisdom and nice adaption of remedy are not always possible' and that judgment is largely a prophecy based on meagre and uninterpreted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be erudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Reig Refining Company (338 US 604 (1950)) be converted into tribunals for relief from such erudities and inequities. There may even be possibilities of abuse, W.A. No.1511/13 : 19 :

but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its erudities or inequities or by the possibilities of abuse of any of its provisions. If any erudities, inequities or possibilities of abuse come to light the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.

xxx xxx xxx

19............................................The Court must always bear in mind the constitutional proposition enunciated by the Supreme Court of the United States in Munn v.

Illinois (94 US 13), namely, 'that courts do not substitute their social and economic beliefs for the judgment of the legislative bodies'. The Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, W.A. No.1511/13 : 20 :

unless the exercise of legislative judgment appears to be palpably arbitrary. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (228 US 61 (1912)):

"The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned, Mere errors of government are not subject to our judicial review'." (Emphasis supplied)

17. The opinion of Mr.Justice Frankfurter in West Virginia State Board of Education v. Barnette (319 US 624 (1943)) with great clarity and felicity, explained the cause of judicial restraint and the need for deference to the views of the legislature. The relevant portion of the said opinion reads as follows:

"As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a Judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary W.A. No.1511/13 : 21 :

person.

It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review .. ......................................................... For the removal of unwise laws from the statute books, appeal lies not to the courts, but to the ballot and to the processes of democratic government....... The Constitution does not give us greater veto power when dealing with one phase of 'liberty' than with another, or when dealing with grade school regulations than with college regulations that offend conscience. In neither situation is our function comparable to that of a legislature, or are we free to act as though we were a super-legislature.............................. The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of Government does not call for its rejection or its disuse. But it is the W.A. No.1511/13 : 22 :

best of reasons, as this Court has frequently recognized, for the greatest caution in its use........ Tact respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature?......................... A court can only strike down. It can only say 'This or that law is void'. It cannot modify or qualify, it cannot make exceptions to a general requirement........................................ If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed Judges should not have life tenure, and they should be made directly responsible to the electorate. There have been many, but unsuccessful, proposals in the last 60 years to amend the Constitution to that end...........................

I think I appreciate fully the objections to the law before us. But to deny that it presents a question, upon which men might reasonably differ, appears to me to be intolerance. And since men may so reasonably differ, I deem it beyond my constitutional power to assert my view of the wisdom of this law W.A. No.1511/13 : 23 :

          against       the      view    of     the  State   of   West

          Virginia...................

          The     attitude       of   judicial   humility which   these

considerations enjoin is not an abdication of the judicial function. It is a due observance of its limits.................

Courts, as has often been said, are not to think of the legislators, but of the legislature-the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power. It is this majestic representative of the people whose action is in question, a co-ordinate department of the Government, charged with the greatest functions, and invested, in contemplation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires.

To set aside the acts of such a body, representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act. Something is wrong when it can ever be other than that. And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched: it cannot rightly attempt to protect the people by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where responsibility lies, and to bring down on that precise locality the W.A. No.1511/13 : 24 :

thunderbolt of popular condemnation. "

(Emphasis supplied)

18. The above decisions in felicitous words highlight the principle that the courts should be slow to interfere or tinker with legislative wisdom. The people of our State should be conceded the freedom to decide what law should govern them. Their representatives in the Legislative Assembly can pass any law, subject, of course, to the constitutional limitations. The Government having majority in the Legislative Assembly, should also be conceded the same degree of freedom to legislate by issuing an Ordinance. Here also, the power has to be exercised, subject to the constitutional limitations. The courts should respect the judgment and wisdom of the legislature on social and economic issues, reflecting the will of, "we the people". The Judges, however learned or erudite they may be, may not substitute their judgment for that of the legislature.

8. Having taken note of the aforesaid principles which should govern us, we shall now proceed to deal with the contentions raised at the Bar.

9. As we have already stated, the first contention raised by the learned counsel for the appellant was that the Division Bench having in Philip's case (supra) upheld the constitutional W.A. No.1511/13 : 25 :

validity of Act 9 of 2009, it was not open to the state legislature to alter the position by introducing Act 13 of 2012.

10. First of all, the validity of a statute has to be examined with reference to the question whether the legislation transgressed any of the constitutional limitations. The fact that the state legislature is competent to enact law governing Co- operative Societies is not in dispute. Once the competence of the legislature is thus admitted and if it is not the case of the appellant that the constitutional limitations are otherwise transgressed, we feel that the enquiry by this Court should not go any further as otherwise this Court will be transgressing its constitutional limitations and will be sitting in appeal over the collective legislative wisdom of the people, the supreme authority in our constitution scheme. Therefore, the fact that a Division Bench of this Court has upheld the amendment of the Co- operative Societies Act introduced by Act 9 of 2009, does not in any manner fetter the competence of the State legislature to again amend the very same provisions and thereby either to introduce new provisions or to restore the position as it was W.A. No.1511/13 : 26 :

prevailing when Act 3 of 2002 held the field. If that be the legal position, we cannot accept the case of the appellant that Act 13 of 12 to the extent it is challenged calls for interference.

11. The second contention raised by the learned counsel for the appellant was that the nominal and associate members of the District Co-operative Banks were treated discriminatively. Section 5(1)(a) and (b) of Act 13 of 2012 read thus;

5. Special provision in respect of the existing District Co-operative Banks (1) Notwithstanding anything contained in the principal Act, or in any judgment, decree or order of any court, tribunal or other authority, on the commencement of the Kerala Co-operative societies (Second Amendment) Ordinance, 2012 (18 of 2012).

(a) any primary society which had ceased to be a member of the District Co-operative Bank as on the commencement of the Kerala Co-operative Societies (Amendment) Act, 2008 (9 of 2009) shall be deemed to have become members of such District Co-operative Bank and the share amount, if any, of such society transferred to suspense account shall be deemed to be the share amount in respect of the said society.

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: 27 :

(b) the nominal or associate member admitted after the commencement of the Kerala Co-operative Societies (Amendment) Act, 2008 (9 of 2009) shall cease to be the members of the District Co-operative Bank and shall apply for membership in the District Co-operative Bank afresh.

12. A reading of the above provision shows that Section 5 (1)(a) talks about primary societies which have ceased to be members of the District Co-operative Bank on the commencement of Act 9/2009 and by virtue of this provision, such societies shall be deemed to have become members of such District Co- operative Banks and the share amount, if any, of such societies which are transferred to suspense accounts shall be deemed to be the share amounts in respect of the said societies. While section 5 (1)(a) talks about primary societies which were members of the District Co-operative Banks, which had lost such membership and become nominal and associate member on account of the provisions contained in Act 9 of 2009, Section 5(1)(b) of Act 13 of 2012 talks about nominal and associate members admitted as such after the commencement of Act 9 of 2009. In other words, while Section 5(1)(a) talks of societies which were full members of W.A. No.1511/13 : 28 :

the District Co-operative Banks prior to 11/12/2007 when Act 9 of 2009 came into force, Section 5(1)(b) talks about nominal and associate members which were admitted by the District Co- operative Banks after Act 9 of 2009 came into force.

13. Reading of these provisions also show that while Section 5(1)(a) provides for restoration of membership of the societies, Section 5(1)(b) provides for cessation of membership of the nominal and associate member societies with liberty to such societies to apply for membership in District Co-operative Banks afresh and thus obtain full membership, which also confers all privileges including voting rights which was not enjoyed by such nominal and associate members.

14. As we have already stated, the contention raised by the learned counsel for the appellant was that as on the date of Act 13 of 2012, there was only one class of societies, viz., societies which were all having nominal and associate membership and that by virtue of Section 5(1)(a) and (b), that one class of societies are classified into two and are W.A. No.1511/13 : 29 :

discriminately treated. The question that we have to examine is whether there is any basis for this argument.

15. Having gone through these two provisions anxiously, we are of the view that though this contention would prima facie sound attractive, there is no substance in it. A closer reading of Section 5(1)(a), as we have already indicated, shows that it applies to societies which were already members as on 11/12/2007 and which on account of the provisions of Act 9 of 2009 lost such membership and were made nominal and associate members, whereas Section 5(1)(b) talks about societies which were admitted as nominal and associate members subsequent to 11/12/2007 on account of the provisions of Act 9 of 2009. Therefore, such societies belonged to two different classes and could not have at any rate be considered to form a homogeneous class, which alone could have attracted the prohibition of further classification. If that be so, since Article 14 does not prevent classification and only prohibits discrimination, the vice of this Article cannot be attracted in the case of the societies to which Section 5(1)(a) and (b) are attracted. In such W.A. No.1511/13 : 30 :

circumstances, the plea of discrimination raised at the Bar also does not merit acceptance.

16. Learned counsel for the appellant relied on the Apex Court judgment in Damyanti Naranga v. Union of India {(1971) 1 SCC 678}, which was followed in Asom Rastrabhasa Prachar Samiti v. State of Assam {(1989) 4 SCC 496} and A.P.Dairy Development Corporation Federation v. B.Narasimha Reddy and Others {(2011) 9 SCC 286} and contended that by a legislation, the membership of an association cannot be taken away.

17. First of all, the decisions relied on by the learned counsel for the appellant dealt with cases where membership of associations governed by the provisions of the Societies Registration Act were in issue. The provisions of the Societies Registration Act are incomparable to the provisions of the Kerala Co-operative Societies Act. That apart, the provisions contained in the IInd schedule to the Act and also the constitutional provision contained in Article 243 ZI makes co-operative societies distinct and different from organizations to which the Societies W.A. No.1511/13 : 31 :

Registration Act are applicable. Therefore, we are unable to import the principles laid down by the Apex Court in the judgments relied on by the learned counsel for the appellant to the facts of this case.

In the result, we do not find anyone of the contentions acceptable and the appeal therefore is devoid of merits and is dismissed.

Sd/-

ANTONY DOMINIC JUDGE Sd/-

ANIL K. NARENDRAN JUDGE Rp //True Copy// PA TO JUDGE

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