IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 WA.No. 2520 of 2009() --------------------- AGAINST THE ORDER IN WPC.31511/2009 Dated 05/11/2009 .................... APPELLANT(S)RESPONDENTS 2 TO 4: -------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KOLLAM. 2. THE ELECTORAL OFFICER/ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM. 3. THE UNIT INSPECTOR/RETURNING OFFICER, OFFICE OF THE ASSISTANT RESGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM. BY SENIOR GOVERNMENT PLEADER SRI. BENNY GERVASIS. RESPONDENT(S)/PETITIONER & RESPONDENTS 1 & 5: --------------- 1. R. GOPALAKRISHNA PILLAI, 'ARATHI', BHAVANA NAGAR, KA DAPPAKKADA, KOLLAM. 2. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. THE PATTATHANAM SERVICE CO-OPERATIVE BANK LTD., NO.Q.1145, REPRESENTED BY ITS SECRETARY, PATTATHANAM P.O., KOLLAM. BY ADV. SRI. T.R. HARIKUMAR -R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A NO. 2520 OF 2009 --------------------------------------------- Dated this the 11th day of November, 2009 JUDGMENT Kurian Joseph, J. This appeal is filed against the interim order dated 5.11.2009 in W.P.(C) No. 31511 of 2009. Heard the learned senior Government Pleader appearing for the appellants and Sri. T.R. Harikumar, learned counsel appearing for the first respondent. In the nature of the order we propose to pass, we do not think that this Court need issue notice at this stage to the other respondents since those parties will get sufficient opportunity before the learned Single Judge. 2. An interesting question has been posed by the learned senior Government Pleader touching on the interpretation of Rule 44(1)(b) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as “the Rules”). In order to appreciate the question, it is necessary to extract Rule 44(1)(b) of the Rules to the extent relevant. The Rule reads as follows: W.A. NO. 2520/2009 2 “44. Disqualification of membership of committee.--(1) No member of the society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he: (a) is disqualified under S.28; or (b) is a near relative of a paid employee of the society. Explanation.-- For the purpose of clause (b) of the sub-rule (i), the near relations shall be the following, namely:- 1. Husband 11.Mother-in-law 2. Wife 12. Son-in-law 3. Son 13. Daughter-in-law 4. Daughter 14. Step-son 5. Brother 15. Step-daughter 6. Sister 16. Wife's brother 7. Father 17. Wife's sister 8. Mother 18. Husband's brother 9. Uncle(Maternal) 19. Husband's sister 10.Father-in-law Note:- Brother and sister will not include step- brother and step-sister half-brother and half-sister.” The question is how to approach the issue of relationship? Is it with reference to the candidate or it is with reference to the employee? 3. Under the Kerala Co-operative Societies Rules, since the society is expected to be managed independently by the elected representatives of the members, certain restrictions have been imposed regarding the W.A. NO. 2520/2009 3 qualification of the members. We are concerned with one such restriction regarding near relation of a paid employee being in the management. The learned Single Judge has taken the view that the relationship has to be understood with reference to the candidate. Thus aggrieved, the appeal at the instance of the Department. 4. Under Rule 44(1)(b) of the Rules, a member of the society who is to be elected or appointed as a member of the Managing Committee shall not be a near relative of the paid employee of the said society. Near relation has been explained in the rule itself. Serial No.(9) in the explanation is uncle(maternal). There is no dispute that the writ petitioner is the maternal uncle of Smt. Ushakumari who is a collection agent in the Pattathanam Service Co-operative Bank Ltd., the third respondent herein. But, the contention of the learned counsel appearing for the writ petitioner, which has been accepted by the learned Single Judge, is that though the writ petitioner is the maternal uncle of Smt. Ushakumari, the said Ushakumari is only the niece (sister's daughter) of the writ petitioner and that relationship of a niece is not stipulated under the Rules as a disqualification. Hence, the writ petitioner cannot be disqualified for being elected to be a member of the Managing Committee, it is submitted. W.A. NO. 2520/2009 4 5. We are afraid, the said contention cannot be appreciated. The statutory provision is very clear that the relationship has to be understood with reference to the employee in the society and not with reference to the candidate. It is stipulated that a person who is sought to be elected or appointed as a member of the Managing Committee shall not be a near relative of the paid employee of the society. Therefore, if a candidate is a near relative, as explained in the Rules, of a paid employee of the society, that candidate cannot be elected or appointed to the Managing Committee. 6. Faced with such a situation, the learned counsel for the first respondent/writ petitioner submits that there is another vital dispute as to whether Smt. Ushakumari is a paid employee of the society. According to the writ petitioner, Smt. Ushakumari is only a collection agent and so far she has not acquired the status of a paid employee. The learned senior Government Pleader submits that a decision has already been taken to regularise the collection agents and hence for all purposes Smt. Ushakumari is a paid employee of the society. These factual disputes are to be resolved in the Writ Petition and this Court, at this stage, need not go into those aspects. 7. In the above circumstances and in view of the proper W.A. NO. 2520/2009 5 interpretation of Rule 44(1)(b) of the Kerala Co-operative Societies Rules, we set aside the interim order under appeal. However, we permit the first respondent/writ petitioner to provisionally contest the election. We make it clear that the acceptance of the nomination of the first respondent/writ petitioner and his contest in the election and other proceedings will be subject to the result of the Writ Petition. The Writ Appeal is allowed as above. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2520/2009 6 C.R. KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NO.2520/2009 JUDGMENT 11th November, 2009 W.A. NO. 2520/2009 7