K. Vinod Chandran, J.

The question raised herein is whether the persons nominated by the Government under Section 31 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as "the Act") to the Apex or Central Society is entitled to continue after the coming into force of Kerala Co-operative Societies (Amendment) Act, 2013 (hereinafter referred to as "the Amendment Act") in the teeth of the prohibition under sub-section (2A) of Section 31. It is also to be resolved as to whether if the above questions are answered in the negative, would S.R.O. No. 508/2013, issued by the Government under Section 101 of the Act, save the position in so far as permitting such nominees and office bearers to continue till the date of next elections.

2. Admittedly respondents 3 and 5, now alleged to be continuing as the President and Vice-President of the 1st respondent-Society, were nominated under the unamended Section 31 of the Act and were also elected to the aforesaid offices of the Board of the 1st respondent. While they were continuing, the Amendment Act came into force and the petitioner, who is the President of an Employees' Association of the 1st respondent, filed a complaint before the Joint Registrar contending that the President of the 1st respondent-Society, the 3rd respondent herein, is dis-entitled to continue in the said post by reason of the amendments made. A learned Single Judge, by Exhibit P4, also directed consideration of the representation expeditiously. The Government, by Exhibit P8 S.R.O., purportedly invoked the powers under Section 101 of the Act to remedy the situation.

3. I have heard the learned Senior Counsel Sri. P. Ravindran appearing for the petitioner, learned Senior Counsel Sri. Raju Joseph appearing for the 5th respondent, learned counsel Sri. Sudhi Vasudevan appearing for the 3rd respondent as also the Special Government Pleader (Co-operation) Sri. D. Somasundaram.

4. The learned Senior Counsel appearing for the petitioner would contend that the intention in bringing out the Amendment Act is to make the Act in tune with the Constitution 97th Amendment Act, 2011, which included Part IXB in the Constitution of India. Going by the Constitutional provisions, the power to nominate is exclusively on the Board [proviso to Article 243ZJ(2)] and the power to co-opt members having knowledge in specialised subjects is also conferred on the Board [Art. 243ZJ(3)]. Article 243ZK, by providing for "election of a Board", contemplates only members who are elected to a validly constituted Board, as distinguished from "election to a Board". Article 243ZT mandates that the law relating to Co-operative Societies in force in the State running contrary to Part IXB, shall be valid only for an year or till the same is amended or repealed in consonance with Part IXB. Hence the Amendment Act was brought in.

5. Section 31 was also amended to make it in consonance with the Constitutional provisions and by introduction of sub-section (2A), there is a bar in so far as the nominated members under sub-section (1) of Section 31 continuing to hold office, inter alia, as the President or Vice-President of the Board. On 14.02.2013, when the Amendment Act came into effect, respondents 3 and 5 ceased to hold their respective offices in the Board. Exhibit P8 notification purportedly invoking powers under Section 101 of the Act is assailed as a colorable exercise of power and being bereft of any public interest, on satisfaction of which alone the Government could invoke such powers. The purported action exempting the Societies, in effect, is one exempting the individuals and as such ultra vires the powers conferred under Section 101 of the Act. Section 101 for repugnancy with the Constitutional provisions, could not be invoked by the Government for remedying a disability which flows directly from the pro visions of the Constitution, is the argument. Finally it is also urged that in any event, respondents 3 and 5 having ceased to