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2019 DIGILAW 640 (KER)

Mohammed Nabeeb S/o Pocker v. Registrar Of Co-Operative Society, State Of Kerala, Thiruvananthapuram

2019-08-08

DEVAN RAMACHANDRAN

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JUDGMENT : This writ petition may be of some interest to lawyers-particularly those interested in the management of Co-operative Societies-since the petitioner, who is stated to posses graduation in law, asserts that lawyers are entitled to contest elections to the Managing Committee of a Co-operative Society under the constituency reserved for “persons with professional qualifications”, as per the provisions of the Kerala Co-operative Societies Act ('KCS Act' for short). 2. The petitioner, after asserting to be a lawyer, seeks that his nomination for being elected to the Managing Committee of the Kuttiyady Urban Co-operative Bank Limited (hereinafter referred to ‘the Bank’ for short) be accepted and that he be allowed to contest in the ensuing elections. 3. This writ petition was filed on 30.07.2019, when the elections were scheduled on 04.08.2019. I had, therefore, by an interim order, directed the petitioner's nomination to be accepted provisionally; but the petitioner today complains that inspite of this interim order, his nomination has been rejected. I, therefore, asked Sri.R. Lakshmi Narayan, learned Standing Counsel for the Returning C.R Officer about this allegation, who submitted that on account of an inadvertent and unintended communication error, the said Officer did not accept the petitioner’s nomination; but that since there is one post which is left uncontested, the petitioner can be considered against the same, provided he is statutorily eligible to occupy the post of a member under the relevant constituency. Sri.R.Lakshmi Narayan, therefore, says that this Court may, if so inclined, leave it to the Election Commission to decide whether petitioner can be accommodated to this vacancy, which is still left unfilled. 4. The learned counsel for the petitioner, on hearing Sri.R.Lakshmi Narayan, submitted that his client is fully qualified under Section 28AA of the Kerala Co-operative Societies Act (hereinafter referred to ‘the KCS Act’ for short) for being elected as a member of the Managing Committee under the quota reserved for “Persons who possesses experience in Banking or professional qualification”. He asserts that his client, being a graduate in law, certainly possesses professional qualification and therefore, that the Election Commission be directed to declare him elected to the available vacancy. 5. He asserts that his client, being a graduate in law, certainly possesses professional qualification and therefore, that the Election Commission be directed to declare him elected to the available vacancy. 5. Even though I hear the learned counsel for the petitioner C.R as afore, I have serious doubts whether the petitioner would obtain the right to contest as a candidate under the constituency reserved for persons with “professional qualification” because, under explanation (ii) to Section 28AA of the KCS Act, a professional qualification is defined to mean as under: (ii) “Professional qualifications” means membership in the Institute of Chartered Accountants of India or Masters Degree in Business Administration or Membership in the Institute of Cost and Works Accountants of India or Masters Degree in Commerce with experience in banking or experience in the inspection or audit of banks, including Co-operative Bank. 6. Ex facie from the above, graduation in law has not been included therein; and pertinently, perhaps being fully aware of this, I notice that the petitioner’s assertions are not solely edificed on the provisions of the afore Section, but on Ext.P6 circular issued by the Reserve Bank of India, wherein, even professionals in law are stated to be eligible to be included in the Board of Directors of Cooperative Societies involved in Banking. 7. However, it is certain that the submissions and claim of the petitioner cannot be offered favour by this Court merely based C.R on Ext.P6 circular, unless it can be demonstrated by him that he is statutorily qualified to seek election from the constituency reserved for persons with professional qualifications. 8. In the instant case, the petitioner is resolute in his contentions that he seeks to contest specifically in the constituency in Ext.P2 Election Notification, which is reserved for persons who possesses experience in banking or professional qualifications. However, it is indubitable that when the Election Commission issued this notification, they were guided expressly by Section 28A of the KCS Act and nothing else and therefore, the afore explanation should also apply. Incontestably, therefore, the petitioner, being a professional in law, cannot seek election to the post reserved for persons with professional qualifications, going by the unequivocal terms of Section 28AA of the KCS Act, particularly when he has not chosen to challenge or assail the said Section. Incontestably, therefore, the petitioner, being a professional in law, cannot seek election to the post reserved for persons with professional qualifications, going by the unequivocal terms of Section 28AA of the KCS Act, particularly when he has not chosen to challenge or assail the said Section. That said, the circular of Reserve Bank of India, namely Ext.P6, relied upon by the petitioner is a general one, intended to apply pan-India, but cannot override statutory prescriptions of individual State Laws. It merely declares that professionals in law are also eligible for being considered to be included in the Board of C.R Directors of Co-operative Societies but does not enjoin that they ought to be so included. It thus only prescribes an eligibility without declaring an entitlement. Therefore, the contents of the said circular can only be construed to mean that if the respective and applicable statutes so permit, then graduates in law are also apt to be included in the Management Body of a Society. However, in the KCS Act, since “professional qualifications” are specifically defined as afore extracted, which excludes a graduation in law while including certain others, Ext.P6 circular cannot come to the aid of the petitioner. In the afore circumstances, I am compelled, being without any other option, but to dismiss this writ petition finding that the petitioner is not eligible, going by Section 28AA of the KCS Act, to seek election to the Managing Committee of the Society under the constituency reserved for candidates with “professional qualifications”.