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2016 Supreme(Ker) 1400
High Court of Kerala
P.R. Ramachandra Menon, Babu Mathew P. Joseph, Anil K. Narendran, JJ.
A P Balakrishnan - Appellant
Versus
Kerala State Co Operative Election Commission & Ors - Respondent
W.A. No. 741 of 2015 , W.A.No. 740 of 2015
Decided On : 25-07-2016
Headnote:
The Kerala High Court held that the amended provisions of the Kerala Co-operative Societies Act, 1969 [Act 29 of 1969] by introducing Sections 16A and 19A as per the Kerala Co-operative Societies (Amendment) Act, 2013 [Act 8 of 2013] and to Kerala Co-operative Societies Rules, 1969 by introducing Rule 18A as per the Kerala Co-operative Societies (Second Amendment) Rules, 2014, came into operation 'at once', as given in the amended provisions of the Act/Rules and as such, the voters' list has to be pruned, based on the qualification of members as per the amended provisions.
Fact of the Case:
The term of the Committee was to expire on 20.09.2014. But before that, the Board was superseded as per the orders issued by the Departmental authorities on 16.12.2013, which however was set aside, on intervention by this Court on 14.08.2014. Pursuant to the verdict passed by this Court, the Board was reinstated on 26.08.2014 and thereafter, a resolution was taken on 03.09.2014 to conduct election. Though necessary proceedings were forwarded to the Election Commission, the Commission refused to act upon the resolution to conduct election, presumably for the reason that, by virtue of the mandate of Rule 35A of the Rules, the resolution had to be passed 60 days before the date of expiry of the term, whereas in the instant case, only about 17 days were left.
Finding of the Court:
The Court held that the amended provisions of the Act (Sections 16A and 19A) were not in a position to be given effect to, till Rule 18A was introduced on 26.11.2014 prescribing the 'minimum level of service' to be availed by a member. The Court further held that the term "as may be prescribed", appearing in Section 19A has also to be considered as only in respect of 'minimum level of service' and nothing else. The Court also held that the service/minimum level of service to be availed in the 'year/s' is in respect of business/transactions of the society and hence, such instance has to be read and understood with reference to the meaning of the term 'co-operative year' as defined under section 2 (u) of the Act.
Issues: Whether the amended provisions of the Kerala Co-operative Societies Act, 1969 [Act 29 of 1969] by introducing Sections 16A and 19A as per the Kerala Co-operative Societies (Amendment) Act, 2013 [Act 8 of 2013] and to Kerala Co-operative Societies Rules, 1969 by introducing Rule 18A as per the Kerala Co-operative Societies (Second Amendment) Rules, 2014, came into operation 'at once', as given in the amended provisions of the Act/Rules.
Ratio Decidendi: The Court held that the amended provisions of the Act (Sections 16A and 19A) were not in a position to be given effect to, till Rule 18A was introduced on 26.11.2014 prescribing the 'minimum level of service' to be availed by a member. The Court further held that the term "as may be prescribed", appearing in Section 19A has also to be considered as only in respect of 'minimum level of service' and nothing else. The Court also held that the service/minimum level of service to be availed in the 'year/s' is in respect of business/transactions of the society and hence, such instance has to be read and understood with reference to the meaning of the term 'co-operative year' as defined under section 2 (u) of the Act.
Final Decision: The Court held that the amended provisions of the Act (Sections 16A and 19A) were not in a position to be given effect to, till Rule 18A was introduced on 26.11.2014 prescribing the 'minimum level of service' to be availed by a member. The Court further held that the term "as may be prescribed", appearing in Section 19A has also to be considered as only in respect of 'minimum level of service' and nothing else. The Court also held that the service/minimum level of service to be availed in the 'year/s' is in respect of business/transactions of the society and hence, such instance has to be read and understood with reference to the meaning of the term 'co-operative year' as defined under section 2 (u) of the Act.
P.R. Ramachandra Menon, J.
1. Scope of amendment to the Kerala Co-operative Societies Act, 1969 [Act 29 of 1969] by introducing Section 16A and Section 19A as per the Kerala Co-operative Societies (Amendment) Act, 2013 [Act 8 of 2013] and to Kerala Co-operative Societies Rules, 1969 by introducing Rule 18A as per the Kerala Co-operative Societies (Second Amendment) Rules, 2014, in so far as the rights and liberties of members to continue as members of a Co-operative Society and to exercise their right as a member, including the right to vote in the election to the Board of Directors; forms the subject matter of challenge in these cases.
2. When one group asserts that the amendment cannot have any retrospective effect and will come into play only after two years from the date of commencement of Rule 18A prescribing the requirements, the other group contends that the provisions have come into operation 'at once', as given in the amended provisions of the Act/Rules and as such, the voters' list has to be pruned, based on the qualification of members as per the amended provisions. The newly amended provisions of the Act (Section 16A and Section 19A) were brought into effect from 14.02.2013, whereas Rule 18A of the Kerala Co-operative Societies Rules was made operative from 26.11.2014. Postponement of election and subsequent developments leading to adverse consequences and the steps to conduct election with reference to the amended provisions of law made some of the parties to feel aggrieved, who contend that the election proceedings have to be continued from the stage where it was stopped and not on the basis of a fresh notification issued in conformity with the amended provisions. Contrary contention is raised by the other group, who contend that further proceedings can be pursued only in conformity with the amended provisions of law.
3. Coming to the nature of contentions raised, W.A No. 580 of 2015 arises from the judgment passed by a learned single Judge reported in 2015 (1) KLT 911 [Pradeep Vs. Kerala State Co- operative Election Commission], whereby the writ petition was disposed of directing the Election Commission to issue a fresh notification for election in accordance with the amended Act/Rules. In W.A. No. 741 of 2015, grievance is mainly with regard to the direction given to prune the voters' list by including only the eligible members as per the amended provisions of law. The contention is that, the amended provisions of the Act were to be given effect to, in the manner 'as prescribed' and since such prescription was made by framing Rules (Rule 18A), only with effect from 26.11.2014, the amendment cannot have any effect in fixing the eligibility of members atleast till 25.11.2016, i.e., till expiry of two years from 26.11.2014 (when Rule 18A was introduced). In W.A. No. 1457 of 2015, the challenge is against the interference declined by the learned single Judge in the writ petition filed (seeking a direction to conduct election in terms of Ext. P1 judgment produced in the writ petition, questioning the list of 'active members') and in relegating the writ petitioner to urge all grounds in an 'Election Petition', since the election process had already commenced. Different writ petitions also came to be filed with rival contentions and they were tagged along with these appeals, by virtue of the orders passed in the concerned proceedings.
4. In the meanwhile, the Government issued a Notification dated 25.05.2015, in exercise of the power under Section 101 of the Kerala Co-operative Societies Act, whereby exemption was given to all societies which were affected by sub Section 1 of Sections 16A and 19A of the Act for a period of one year, ten months and fifteen days from 14.02.2014 till 31.12.2015. W.P.(C) No. 17041 of 2015 was filed challenging the said notification, which also came to be posted along with the writ appeals, based on a common order passed by a Division Bench of this Court on 08.06.2015 in W.A. Nos. 5
