SULOCHANA PERERA

Vs.

COMMISSIONER OF CO-OPERATIVE DEVELOPMENT (WESTERN PROVINCE) AND ANOTHER

SUPREME COURT
DE ABREW, J.
THURAIRAJA, J.
AMARASEKARA, J.
SC/APPEAL/146/2016
SP/LA/78/2016
CA (PHC) 56/2014
HCWA 07/2012 (WRIT)
JUNE 26, 2019

Co-operative Societies Statute, No. 3 of 1998 of the Western Provincial Council, section 60(2)-Co-operative Societies Rules, 1973, Rules 21(i) (d) and 21(i)(e)-Subordinate legislation-Disqualification-Interpretation Ordinance, section 17(1)-Interpretation of statutes

The petitioner had been selected as a member of the Periyamulla Pradeshikaya of the Negombo Multi-Purpose Co-operative Society Ltd. After an inquiry, the 1st respondent Commissioner of Co-operative

Development and Registrar of Co-operative Societies (Western Province) informed the petitioner that he was disqualified from contesting or being elected as a member of the co-operative society as he had defaulted in the payment of a loan obtained from the Rural Bank for more than three months. Although there had been a default for more than three months, after arbitration proceedings, the loan was settled long before he was selected as a member in that he was elected as a member in 2011 and the loan was settled in 2006. The petitioner sought a writ of prohibition from the High Court prohibiting the 1st respondent from declaring his election as a member invalid. The High Court held against the petitioner and, on appeal, the Court of Appeal upheld the judgment of the High Court and held that the petitioner was disqualified under Rule 21(i)(e) of the Co-operative Societies Rules, 1973 even though the petitioner had repaid the loan.

Held:

1. Subordinate legislation is considered to have the force of law as if it had been enacted as an Act of Parliament, as per section 17(1) (e) of the Interpretation Ordinance. The Co-operative Societies Rules, 1973 are properly gazetted.

2. Rule 21 (i)(e) of the said Rules states that a member of a registered society shall be disqualified from being elected as a member of the committee of management or of a regional or a branch committee if, in respect of any loan received by him, he is in default to the society or to any other registered society or to a liquidator, for a period not exceeding three months or is in default in any other respect to that society or to any other society or to any liquidator.

3. Considering the intention of the legislature, it is apparent that the purpose of this disqualification is to ensure that a person who is elected to a committee maintains the highest standard of the community.

4. When comparing Rule 21(i)(e) with Rule 21(i)(d), it can be seen that such disqualification cannot be applied forever. Where a person who commits an offence of moral turpitude is only barred for three years as per Rule 21 (i)(d), a person who has defaulted on a loan for more than three months but has subsequently repaid it should not be unfairly treated, since the reasons for defaulting could arise due to various reasons. The disqualification mentioned

in Rule 21(i)(e) should be applicable for a period of three months preceding the date on which the person's qualification for being elected is raised as an issue.

Cases referred to:

1. Eyston v. Studd (1574) 2 Plowd. 463
2. R v. Secretary of State for Justice [2017] UKSC 81
3. R v. City of London Court Judge (1892) 1 QB 273 at 310
4. R v. Wimbledon Justices, Ex p. Derwent (1953) 1 QB 380 at 384
5. Nasiruddin and Ors. v. Sita Ram Agarwal (2003) 2 sec 577
6. Arattana Gedera Susiripala v. Commissioner of Elections and others (SC/APPEAL/75/2010, SC Minutes of 12.02.2014)
7. State of Jharkhand v. Govind Singh (2005) 10 SCC 437

APPEAL from the Judgment of the High Court of Colombo.

Mahanama de Silva with K.N.M. Dilrukshi for the Petitioner-Appellant-Petitioner.

Viraj Dayarathne, P.C.,A.S.G., with Chaya Sri Nammuni, S.S.C., for the 1st Respondent-Respondent-Re