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2001 DIGILAW 474 (KER)

Karunan Master v. State of Kerala

2001-08-24

M.RAMACHANDRAN, P.K.BALASUBRAMANYAN

body2001
Judgment :- P.K. Balasubramanyan, Ag. C J. The Kerala State Co-operative Consumers' Federation, respondent No. 3, is an "apex society" as defined in S.2(a) of the Kerala Co-operative Societies Act, hereinafter referred to as "the Act". The managing committee of the apex society was in place as on 1.1.2000, the date of coming into force of the Kerala Co-operative Societies (Amendment) Act, Act 1 of 2000, which came into force with effect from 1.1.2000, S.28A of the Act was amended. Sub-s.(i) as amended provided that notwithstanding anything contained in the Act, the rules or the bye-laws, there shall be reserved in the committee of every society, one seat for a woman member and one seat for a member belonging to the Scheduled Castes or the Scheduled Tribes. The amendment also took note of the existence of committees to which election was not due. It, therefore, provided in sub-s.(3) as follows: "(3) Where there is no representation of woman or of a member belonging to the Scheduled Castes or Scheduled Tribes in the committee of any apex or central society at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1999, the Government or the Registrar, respectively, may nominate a woman member or a member belonging to the Scheduled Castes or Scheduled Tribes to the Committee." In exercise of the power under the above sub-section, the first respondent-state nominated respondents 4 and 5 to the managing committee of the apex society, respondent No. 4 as a person belonging to the Scheduled Caste and respondent No. 5 as a woman member in the managing committee. It was this action of respondent No. 1, the State, that was challenged by some of the members of the managing committee of the apex society by way of the Original Petition, O.P. 19235 of 2001, giving rise to this Writ Appeal. This short contention, as confined at the appellant stage, was that the nomination of a member belonging to the Scheduled Castes/Scheduled Tribes or woman would be only from out of the members of any of the primary societies that are members of the apex society and they could not be strangers to the primary society or to the apex society. This short contention, as confined at the appellant stage, was that the nomination of a member belonging to the Scheduled Castes/Scheduled Tribes or woman would be only from out of the members of any of the primary societies that are members of the apex society and they could not be strangers to the primary society or to the apex society. This was resisted by the State and respondents 4 and 5 by contending that S.28A(3) of the Act did not limit the power of the State to nominate any woman as a member and any person belonging to Scheduled Castes and Scheduled Tribes as a member in an apex society and there was no requirement that the nominated woman member or the Scheduled Castes/Scheduled Tribes member should already be a member of any of the primary societies that had membership in the apex society. The learned Single Judge rejected the contention of the petitioners stating that there was no woman member of a member belonging to Scheduled Castes/Scheduled Tribes in the Federation except those now nominated and so, the contention that nominated persons must also be members even before the nomination, cannot be accepted. The learned judge also referred to the decision in Tirath Singh v. Bachittar Singh (AIR 1955 SC 830) and the well known rule of interpretation referred to in that decision. 2. Mr. M.K. Damodaran, on behalf of the appellants, submitted that learned Single Judge has not properly considered the question and on a proper interpretation of S.28A of the Act in the light of the other provisions in the Act and the Co-operative Societies Rules, it could be seen that the nomination under S.28A(3) of the Act has to be confined to a woman member or a member of the Scheduled Castes/Scheduled Tribes from among the members of the primary Co-operative Societies, who constituted at the body which formed the membership of the apex society. The learned Additional Advocate General, on the other hand, submitted that there was no reason for restricting the power available to the Government under S.28A(3) of the Act and the interpretation canvassed for by learned counsel for the appellants could not be accepted especially in the context of S.28A(4) of the Act and R.44 of the Co-operative Societies Rules. The learned Additional Advocate General, on the other hand, submitted that there was no reason for restricting the power available to the Government under S.28A(3) of the Act and the interpretation canvassed for by learned counsel for the appellants could not be accepted especially in the context of S.28A(4) of the Act and R.44 of the Co-operative Societies Rules. Counsel appearing for respondents 4 and 5 supported the arguments of Additional Advocate General and counsel for the apex society, referred to the relevant provisions and submitted that the view adopted by the learned Single Judge in the judgment under appeal was a possible view. 3. The intention behind S.28A of the Act is clear. It provides that every managing committee of a society, including an apex society, should have at least one woman member and one member belonging to the Scheduled Castes/Scheduled Tribes. Sub-s.(1) of S.28A has, therefore, provided that there shall be reserved in the committee of every society one seat for a woman member and one seat for a member belonging to the Scheduled Castes/Scheduled Tribes. It has to be noted that the reservation is for a woman member and a member belonging to the Scheduled Castes/Scheduled Tribes. The member normally in the circumstances would mean, a member of the Co-operative Society concerned. Normally it is only a member of the society who is entitled to be elected to the managing committee of that society. The rule of reservation enacted in S.28A(1) of the Act is to pro vide that there should be one seat reserved for a woman from among the members and one seat reserved for a person belonging to the Scheduled Castes/ Scheduled Tribes from among the members of the society. It may be noted that the reservation by S.28A of the Act was introduced by the Cooperative Societies Amendment Ordinance 1985. Therefore, when that Section insisted that a seat for a woman member and a member belonging to the Scheduled Castes/ Scheduled Tribes should be reserved while holding election to the managing committee, it is obvious that what the Section intended was that there should be woman members and Scheduled Castes/ Scheduled Tribes members in every Co-operative Society and at least one each from among them should also be elected to the managing committee. Therefore, inherent in S.28A(1) of the Act is the recognition that every society has woman members and members belonging to the Scheduled Castes/Scheduled Tribes and they should not go unrepresented in the managing committee. S.28A(3) of the Act has, therefore, to be understood in the context of S 28A(1) of the Act. Sub-s.(3) of S.28A of the Act as it stood, enabled the nomination of a woman member or a member belonging to the Scheduled Castes/Scheduled Tribes to the committee of the Kerala State Co-operative Bank Ltd., the Kerala State Co-operative Agricultural and Rural Development Bank Ltd. and in the case of a primary credit society or a District Co-operative Bank. Sub-s.(3) of S.28A of the Act, as substituted by the Amendment Act, Act 1 of 2000, specifically referred to managing committees of any apex or central society at the commencement of the Amendment Act, 1999. It thus took note of managing committee, the term of which had not expired as on the date of that Act. The provision, therefore, conferred the power on the Government or the Registrar, depending on the circumstances, the power to nominate a woman member or a member belonging to the Scheduled Castes/ Scheduled Tribes to the managing committee of the apex society or central society. This is really a power to supply a vacuum in the case of existing managing committees as on 1.1.2000 so as to give effect to the intention behind S.28A(1) of the Act. If that be so, the logical way of understanding the power to nominate conferred by S.28A(3) of the Act is to understand it as enabling the Government or the Registrar to nominate a woman member or a member belonging to the Scheduled Castes/Scheduled Tribes from among the members of the societies which constitute the membership of the apex society or the central society. In other. words, the nomination contemplated by S.28A(3) of the Act should be understood as a nomination of a woman from among the members of the primary societies that are the members of the apex society or the central society and the nomination of a member from among the Scheduled Castes/Scheduled Tribes members of the primary societies which have membership in the apex society or the central society. 4. 4. The learned Additional Advocate General referred to sub-s.(4) of S.28A of the Act and pointed out that it refers to a person nominated to the committee of a society or a bank and hence there was no special significance to the use of the expression "members" contained in S.28A(1) and S.28A(3) of the Act. It is in this context that the Additional Advocate General referred to R.44 of the Co-operative Societies Rules. He pointed out that the disqualification under R.44(1) of the Rules did not apply to nominated members. In particular, he referred to clause (b) of R.44(2) of the Rules and the proviso thereto to point out that even a disqualification does not apply to a person nominated by the Government under sub-s.(3) of S.28A of the Act. This, according to the learned Additional Advocate General, indicated that the nominee under S.28A(3) of the Act need only be a woman or a member of the Scheduled Castes/Scheduled Tribes and need not be a member of any of the primary societies. We find it difficult to accept this argument. The fact that in S.28A(4) of the Act the expression a 'person' is used cannot also control the interpretation to be placed on S.28A(3) of the Act in the context of S.28A(1) and the object sought to be achieved by S.28A(1) of the Act. Normally, only a member of a co-operative society can aspire to be a member of the managing committee of that society unless it be a case of nomination under S.31 of the Act. There is nothing in sub-s.(3) of S.28A of the Act which compels one to jettison that fundamental principle while considering the entitlement of the Government to nominate a woman member and a member belonging to the Scheduled Castes/ Scheduled Tribes to the managing committee of an apex society in a case where as on 1.1.2000, the managing committee of the apex society did not have a woman member or a member belonging to the Scheduled Castes/ Scheduled Tribes. In a sense, S.28A(3) of the Act will have no relevance once an election to the managing committee is undertaken by any apex society or central society after the coming into force of the Amendment Act of 1999 with effect from 1.1.2000. In that election to be held after 1.1.2000, obviously only a member of the primary societies can contest. In a sense, S.28A(3) of the Act will have no relevance once an election to the managing committee is undertaken by any apex society or central society after the coming into force of the Amendment Act of 1999 with effect from 1.1.2000. In that election to be held after 1.1.2000, obviously only a member of the primary societies can contest. Moreover, assuming that S.28A(3) of the Act is capable of a wider interpretation and a narrower interpretation, in the context of the fundamental principles governing the co-operative movement and the setting in which S.28A(3) occurs, we are inclined to the view that it will be more appropriate to prefer a narrow interpretation and confine the power of nomination under S.28A(3) of the Act to the subsisting women members of the primary societies or subsisting members of the primary societies who belong to the Scheduled Castes/Scheduled Tribes. In this situation, we are persuaded to take the view that the nomination of a member as contemplated by S.28A(3) of the Act can only be of a member of any of the primary societies that have membership in the apex society. 5. There is no dispute about the fact, that respondents 4 and 5 the nominee members under S.28A(3) of the Act, are not members of any of the primary societies affiliated to the apex society. In view of the interpretation placed by us on the power available under S.28A(3) of the Act as above, it is clear that the nomination of respondents 4 and 5 to the third respondent, apex society, cannot be upheld. The nomination of respondents 4 and 5 is hence declared invalid. Respondent No.1 is directed to nominate a woman member and a member belonging to the Scheduled Castes/Scheduled Tribes from among members of the primary societies affiliated to the apex society immediately and in any event within six weeks from today. We, therefore, allow this Writ Appeal and setting aside the judgment of the learned Single Judge, allow the Original Petition to the extent indicated above. The parties are directed to suffer their respective costs.