PAVITHRAN v. STATE OF KERALA — 1979 DIGILAW 181 (KER)

Judgment :- 1. The petitioner is one of the members elected to the committee of management of the 4th respondent, the Cannanore Co-operative Urban Bank, Cannanore, at the election which took place on 26 61977 for the years 1977 1980. The 1st respondent is the State of Kerala, the 2nd respondent the Registrar of Co-operative Societies, Trivandrum, 3rd respondent the Deputy Registrar of Co-operative Societies, Cannanore, 5th respondent the President of the 4th respondent Bank, 6th respondent the Vice President of the 4th respondent Bank, and respondents 7 to 9 the members nominated to the committee of management of the 4th respondent Bank by the 3rd respondent. In this writ petition the challenge is directed against the nomination of respondents 7 to 9 to the committee of management of the 4th respondent Bank. 2. The counsel for the petitioner submitted that the nomination of respondents 7 to 9 to the committee amounts to an act done in violation of the provisions contained in sub-section (1) of S.28 of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the Act, which reads as follows: "28. Appointment of committee. (1) The general body of a society shall constitute a committee in accordance with the byelaws and entrust the management of the affairs of the society to such committee." The counsel for the petitioner read out to me the relevant portion of the byelaws extracted in Ext: P-5 to press the point that the byelaws do not make any provision for nomination of any member to the committee of management, as it speaks only about election of members to the committee. The Government Pleader appearing for respondents 1 to 3, the counsel for the 4th respondent and the counsel for respondents 5 and 6 submitted that the provisions contained in S.28 are general in nature, whereas the provisions contained in S.31 are special in nature. S.31 reads as follows: "31. Nominees of Government on committee of a society. The Government Pleader appearing for respondents 1 to 3, the counsel for the 4th respondent and the counsel for respondents 5 and 6 submitted that the provisions contained in S.28 are general in nature, whereas the provisions contained in S.31 are special in nature. S.31 reads as follows: "31. Nominees of Government on committee of a society. (1) Where the Government (a) have subscribed to the share capital of a society; or (b) have assisted indirectly in the formation or augmentation of the share capital of a society as provided in Chapter VI; or (c) have guaranteed the repayment of principal and payment of interest on debentures issued by a society; or (d) have guaranteed the repayment of and payment of interest on loans and advances to a society, the Government or any authority specified by the Government in this behalf shall have the right to nominate not more than three persons or one-third of the total number of members of the committee of the society, whichever is less, to be members of the committee. (2) A person nominated to the committee of a society under sub-section (1) shall hold office during the pleasure of the Government or the specified authority, as the case may be. (3) A person nominated to the committee of a society under sub-section (i) shall not take part in the discussion of any no confidence motion or vote on any such motion." The counsel appearing for the respondents have also drawn my attention to S.43 of the Act. That section reads as follows: "43. Indirect partnership of Government in societies. The Government may provide monies to a society for the purchase of shares in other societies with limited liability." Before entering a discussion in regard to the merit of the case of the petitioner we may also notice the relevant provisions of R.37 and 38 of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the Rules: "37. Procedure for Appointment of Nominees and their removal from the Committee of a society. (1) Appointment of nominees of Government under S.31 shall be made, in the case of Apex societies by the Government and in the case of other societies by the Registrar. Procedure for Appointment of Nominees and their removal from the Committee of a society. (1) Appointment of nominees of Government under S.31 shall be made, in the case of Apex societies by the Government and in the case of other societies by the Registrar. (2) The powers, duties, the functions and responsibilities of a person nominated to the committee under S.31 or under the byelaws of a society by any authority shall be the same as those of a member duly elected under the byelaws. (3) When the Registrar or any other Officer exercising the powers of the Register is on the Committee either as a nominated or as an ex-officio member of any society, no resolution or decision taken by that society at a meeting in which such officer or officers in their capacity as a member of the committee participate shall be deemed to carry with it the sanction of the Registrar. Registrar's or any other Officer's presence at such committee meetings in the above capacity shall not preclude the Registrar or other officers from examining such resolutions or decisions in exercise of his powers conferred by the Act or Rules and in passing orders either according or refusing sanction or approval. 38. Constitution of committee resignation and removal from membership. (1) When a committee is constituted under S.28 it shall elect its President and other office bearers within one week from the date of its constitution. It shall also by a resolution authorise the officers concerned, to take charge from the outgoing office bearers. Rule 43(1) provides as follows: "43. Election of President, Vice President etc., by members of committee. (1) When a committee is constituted under S.28 it shall elect its President and other office bearers within one week from the date of its constitution. It shall also by a resolution authorise the officers concerned, to take charge from the outgoing office bearers. Rule 43(1) provides as follows: "43. Election of President, Vice President etc., by members of committee. (1) The election of President, Vice President, Treasurer or any other officer by whatever name he is designated shall be in the manner specified rule." On a careful reading of the provisions contained in S.28, 31 and 43 of the Act and R.37, 38 and 43 of the Rules it could be found that the provisions contained in S.31 are intended to serve a particular purpose, mainly to safeguard the interest of the Government in cases where it either subscribes the share capital of the society, or assists indirectly in the formation or augmentation of the share capital of the society, or guarantees the repayment of principal and payment of interest on debentures issued by the society, or guarantees the repayment of principal and payment of interest on loans and advances to a society The provisions contained in S.28(1) of the Act are to apply in the ordinary cases in which the Government did not subscribe to the share capital, or indirectly assist in the formation or augmentation of the share capital, or guarantee repayment of amounts due under debentures or loans obtained by the society. If this distinction is borne in mind, there could be no difficulty in reconciling the provisions of S.28(1) and 31 of the Act which may, at the first flash, appear to be inconsistent with each other. In this writ petition the validity of S.31 of the Act is not under challenge. The nomination of respondents 7 to 9 is attacked on the sole ground that where there is no provision in the byelaws of the society for the nomination of members to the committee of the society, S.31 would not come into play. It should be the endeavour of the Court to give harmonious construction to the extent possible while interpreting provisions contained in two sections of a statute which may apparently seem to be in conflict with each other to avoid frustration and absurd consequences, by giving effect to the true intendment of the legislature. It should be the endeavour of the Court to give harmonious construction to the extent possible while interpreting provisions contained in two sections of a statute which may apparently seem to be in conflict with each other to avoid frustration and absurd consequences, by giving effect to the true intendment of the legislature. Viewed in this light it could be construed harmoniously that ordinarily the constitution of the committee would be governed by the provisions of S.28. The provisions therein will stand qualified by the provisions contained in S.31 of the Act when any of the requirements stated in clauses (a) to (d) of subsection (1) of that section (S.31) is fulfilled. In this case from Exts. R-2 and R-3 it is found that the Government of Kerala through the Reserve Bank of India has indirectly assisted to secure contribution to the share capital of the Bank to the extent of Rs. 12,000/-. This being the position the provisions of S.31 are squarely attracted and the Registrar of the Co-operative Societies is entitled to nominate three members to the committee which number does not exceed one-third of the number of the elected members. I, therefore, reject the contention of the petitioner that the nomination of respondents 7 to 9 is made in violation of the provisions contained in the Act. 3. There is also a prayer in the writ petition (Prayer C) that the members nominated to the committee should not be permitted to participate in the election to the office of the President of the Bank. R.37(2) of the Rules, which was noticed earlier, makes it clear that the powers, duties, functions and responsibilities of a person nominated to the committee under S.31 or under the byelaws of a society by any authority shall be the same as those of a member duly elected under the byelaws. The provisions contained in R.38 in regard to the election of the President does not give any indication that members nominated to the committee would not be entitled to participate in the election of the President. It may also be noticed that under sub-section (3) of S 31 it is made clear that a person nominated to the committee of a society under sub-section (1) shall not take part in the discussion of any no confidence motion or vote on any such motion. It may also be noticed that under sub-section (3) of S 31 it is made clear that a person nominated to the committee of a society under sub-section (1) shall not take part in the discussion of any no confidence motion or vote on any such motion. Impliedly this shows that they have a right to participate in the election of the President and the bar is only to the participation in the discussion of any no-confidence motion and on voting on any such motion. The contention that nominated members of the committee are not entitled to exercise vote in the election of the President also cannot be upheld. For the foregoing reasons the writ petition fails and is dismissed, however, in the circumstances of the case, without any order as to costs. Now that the writ petition is dismissed, the administrator stated to have been appointed by virtue of the order on C.M.P. No. 9529 of 1977 shall cease to function. Carbon copy of this judgment will be granted to the Government Pleader free of charge and to the counsel for the petitioner, 4th respondent, respondents 5 and 6 and respondents 7 to 9 on usual terms if applied for in that behalf. Dismissed.