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1954 DIGILAW 157 (KER)

Ramakrishna Menon v. State

1954-09-17

M.S.MENON

body1954
Judgment :- 1. The petitioner is a member of two co-operative societies, Society No. 137, a multi-purpose society with the liability of its members unlimited and Society No. 3131, a credit society with limited liability which was formed in July 1949 by some 20 persons, most of whom were already members of Society No. 136. The Registrar of Co-operative Societies objected to the dual membership (Exts. A and Al) and the Government have sustained his objection by their order dated 20.2.1954 (Ext. B) the relevant portion of which reads as follows: "The appeal petition is against order No. S4-18/51 dated 26.8.1953 of the Registrar of Co-operative Societies, that persons who are members of both the Vadakkekara Multi-purpose Co-operative Society No. 137 and the Vadakkekara Co-operative Society No. 3131 should relinquish their membership in one or the other of the two societies. Under R. XLVII of the Rules framed under Act X of 1952, no person being a member of a Co-operative Society or any society dispensing credit other than a Land Mortgage Bank or Central Financing Society shall be a member of any other society of a similar type without the general or special sanction of the Registrar and where a person has become a member of two or more societies, any or all such societies are bound to remove from membership upon receiving a written requisition from the Registrar to that effect. In the light of the above, Government hold that the said order of the Registrar of Co-operative Societies is legally in order as he is competent to ask the societies by a written requisition to remove such persons from the membership of any or all such societies. The order of the Registrar of Co-operative Societies will therefore stand. The petition read as 1st paper is rejected." 2. This petition challenges the validity of the decision given and prays that this court should: "(a) issue orders calling up all the records of the relevant file culminating in the Government Order D. Dis.13256/53/D.D dated 20.2.54 and to issue orders in the nature of a writ of certiorari quashing the proceedings of the 1st respondent dated 20.2.54 confirming the order of the 2nd respondent dated 28.8.53; (b) issue such further directions to the respondents to protect the interest of the Society as the nature of the case may require." 3. The correctness or otherwise of the decision taken by the Registrar and affirmed by the Government will depend on the scope and validity of R. XLVII of the Travancore-Cochin Co-operative Societies Rules, 1953, which is in the following terms: "No person being a member of a co-operative credit society or any society dispensing credit other than a Land Mortgage Bank or Central Financing Society shall be a member of any other society of a similar type without the general or special sanction of the Registrar and where a person has become a member of two or more societies any or all such societies shall be bound to remove him from membership upon receiving a written requisition from the Registrar to the effect." 4. It is admitted by the petitioner that both the societies, Nos. 137 and 3131, are engaged in the dispensing of credit. His contention, however, is that in spite of this common feature they are not societies "of a similar type" and that his dual membership is not hence within the mischief of R. XLVII. The contention that they are not "of a similar type" is based on two points, namely: (a) that whereas Society No. 137 is a multi-purpose society, society No. 3131 is a credit society, pure and simple; and (b) that whereas the liability of the members of the former society is unlimited the latter is a society with limited liability. 5. I am not prepared to agree with this contention. As I read the rule the question that has to be posed in considering whether two societies are "of a similar type" is: "Are they both credit societies or engaged in the dispensing of credit" and not : "Are they identical in respect of all the objects for the realisation of which they were formed or the quantum of the liability involved in their membership". 6. The next contention of the petitioner is that the dual membership has the sanction of the Registrar, not a general sanction or an express sanction, but a special sanction arising by necessary implication from the Registrar's conduct in allowing the registration of the two societies, in approving their bye-laws and as evidenced by exhibits like Exts. 6. The next contention of the petitioner is that the dual membership has the sanction of the Registrar, not a general sanction or an express sanction, but a special sanction arising by necessary implication from the Registrar's conduct in allowing the registration of the two societies, in approving their bye-laws and as evidenced by exhibits like Exts. F, G and H. Even on the assumption that an implied sanction is sufficient for the purpose of R. XLVII I am unable to gather such a sanction from the circumstances invoked by the petitioner and the documents mentioned by him. I must also add that even if such a sanction can be so gathered I take the view that a sanction once granted is by no means irrevocable and if it had been granted in this case it must be deemed to have been revoked by the subsequent proceedings of the Registrar. 7. The only other contention of the petitioner is based on S.91(1) of the Travancore-Cochin Co-operative Societies Act, 1951, which provides: "Every society now existing which has been registered or deemed to be registered under the Co-operative Societies Acts repealed by this Act shall be deemed to be registered under this Act and its bye-laws shall, so far as the same are not inconsistent with the express provisions of this Act, continue in force until altered or rescinded." According to the petitioner R. 5 of the bye-laws of Society No. 137 permits simultaneous membership of that society and of a society with limited liability like Society No. 3131 and as there is nothing in the bye-laws of the latter society which precludes such membership and as the bye-laws of the two societies are inconsistent not with the express provisions of the Act but only of R. XLVIII he is entitled to retain his membership of both the societies until the bye-laws are amended in accordance with R. VI of the Travancore-Cochin Co-operative Societies Rules, 1953. This argument ignores the provisions of S. 96(4) of the Act which specifically provides that: "All rules made under this section shall be published in the Gazette and on such publication shall have effect as if enacted in this Act." The rule concerned has been duly published in the Travancore-Cochin Gazette No. 31 dated 4.8.1953 and the effect of a section like S. 96(4) as I understand it is to make any express provision in the rules validly framed and published an express provision of the Act itself. In other words, R. XLVII - the intra vires character of the rule or of S. 96(4) was not disputed before me - has to be deemed to be an express provision of the Travancore-Cochin Co-operative Societies Act, 1951, as a result of sub-s. (4) of S. 96, thus satisfying the provision of S. 91(1) of the Act and making ineffective all subsisting bye-laws which authorised a dual membership. The words "as if enacted in this Act" and similar words to the same effect form an ancient formula which has come up for consideration in the English Courts. 8. In 63 L.J.Q.B. 74 Lord Herschell had to construe the words "shall be of the same effect as if they were contained in this Act" and he said: "I own feel very great difficulty in giving to this provision, that they 'shall be of the same effect as if they were contained in this Act', any other construction than this, that you shall for all purposes of construction or obligation, or otherwise, treat them exactly as if they were in it. No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment, and with regard to the rules that would be treated as if in the enactment. I that case, probably, the enactment itself would be treated as the governing consideration, and the rule subordinate to it." In 100 L.J.K.B. 306 Viscount Dunedin had to deal with the words "as if enacted in this Act". I that case, probably, the enactment itself would be treated as the governing consideration, and the rule subordinate to it." In 100 L.J.K.B. 306 Viscount Dunedin had to deal with the words "as if enacted in this Act". He quoted with approval the words of Lord Herschell beginning with the second sentence in the extract given above, and said: "What that comes to is this: The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If, therefore, the scheme, as made, conflicts with the Act, it will have to give way to the Act. The mere confirmation will not save it. It would be otherwise if the scheme had been per se, embodied in a subsequent Act, for the maxim to be applied would have been posteriora derogant prioribus." The Committee on Ministers' Powers dealt with the effect of the words "shall have effect as if enacted in this Act" at page 40 of the Report as follows: "In many statutes Parliament has provided that the Minister may make an order under the Act, and that the order when made, 'shall have effect as if enacted in this Act'. The latter half of the provision has been much discussed, and criticised, on the assumption that prevented a Court of Law from inquiring into the order. All such criticism has, however, been laid to rest by the decision of the House of Lords in Minister of Health v. The King (on the Prosecution of Yaffe) (100 L.J.K.B. 306), in which the House laid it down that while the provision makes the order speak as if it were contained in the Act, the Act in which it is contained is the Act which empowers the making of the order, and that therefore, if the order as made conflicts with the Act, it will have to give way to the Act. In other words, if in the opinion of the Court the order is inconsistent with the provisions of the Act which authorises it, the order will be bad. In other words, if in the opinion of the Court the order is inconsistent with the provisions of the Act which authorises it, the order will be bad. It is, therefore, clear that the validity of any order made under a provision so worded remains legally open to question, and that it is only when what is done falls within the limits of the powers conferred, and conforms to the conditions imposed, that the order acquires the force of law." As already stated no question as to the validity of R. XLVII or of the Act under which it has been framed arises for consideration in this case and so I deem it unnecessary to refer to the other decisions and discussions which deal with the matter. 9. In the light of what is stated above this petition must fail and it is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs. Dismissed.