IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 34796 of 2008(P) --------------------------------------- PETITIONER: ------------------- THE CALICUT CITY SERVICE CO-OPERATIVE BANK LTD.NO.D.2777, CHALAPPURAM, CALICUT, REP.BY ITS PRESIDENT. BY ADV. SRI.B.S.SWATHY KUMAR. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CALICUT. R1 & R2 BY GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.34796 of 2008-J = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of November, 2008. JUDGMENT “CR” 1.The General Body of the petitioner, a co- operative bank, passed Ext.P1 amendments to its bye-laws and placed it for approval. The Joint Registrar returned it as per Ext.P3, after entering certain findings. This is under challenge. 2.The impugned decision could be subjected to a statutory remedy under Section 83 of the Kerala Co-operative Societies Act, 1969, the “Act”, for short. The plea that such remedy would be of no avail, having regard to the political conglomeration in the Government, is insufficient to hold that the same is not an adequate remedy. WP(C)34796/08 -: 2 :- That notwithstanding; constitutional and judicial discretion advises me to entertain this writ petition under Article 226 of the Constitution, having regard to the importance of some of the questions of law that arise for decision. Therefore, this writ petition is entertained. 3.The most important issue relates to the refusal to approve an amendment dealing with reservation in favour of women. The General Body decided to amend clause 20 and enhance the seats reserved for women in the committee. For that, the proposed 33% reservation in elected bodies, a matter yet to be Law, as made either by the Parliament or any State Legislature, was treated by the General Body as the yardstick. The Joint Registrar has taken the stand that reservation for women could be only for one seat, that is, to the extent of the mandate of Section 28A of the Act, though there would be no prohibition for women occupying other seats on open competition. WP(C)34796/08 -: 3 :- 4.Section 28A of the Act provides that notwithstanding anything contained in the Act, the rules or the bye-laws, there shall be reserved in the committee of every society, one seat for a woman member. That is the compulsion by legislation. It is mandatory. No society can go without it. 5.But, the prescription in Section 28A would, in no manner, inhibit any society from deciding for itself, that it would reserve more number of seats in favour of women. That provision does not stand in the way of the General Body from taking a decision to reserve for women, more seats than the mandatory minimum in that provision. There is nothing in Section 28A, amounting to any embargo on the prerogative of the General Body of a co- operative society to resolve to have a particular percentage of reservation for women among the members of its committee, over and above the WP(C)34796/08 -: 4 :- mandate of Section 28A. The statutory mandate is only the bench mark as to the minimum. 6.No community or civilisation could stand without womanhood. The General Body has decided to reserve a particular number of seats for women, in this case, of 33% and thereby fixing the seats reserved for women as 3. That is not impeachable as irrational. It cannot be faulted. In fact, what the bank has done is a laudable and a progressive step towards women empowerment, which should be a matter for application and practice rather than to be confined to vociferous expositions by mere trumpet-calls from platforms. 7.For the reasons aforesaid, the amendment of clause 20 and the resultant amendment of clause 26 need to be approved. 8.The learned Government Pleader suggested that the issue regarding the reservation for women may WP(C)34796/08 -: 5 :- be left to the Joint Registrar to decide since there may be circulars inhibiting it. There should be none. For, no such circular would stand the test of the Constitution and the Laws. Article 15(1) of the Constitution provides the fundamental protection against discrimination on grounds only, inter alia, of sex. This means that sexual identity by itself is no ground to discriminate against any citizen. If that were done, it will amount to hostile discrimination. Notwithstanding that, Clause 3 of Article 15 provides that nothing in that article shall prevent the making of any special provision, inter alia, for women. No provision for a reservation giving effect to Article 15(3) can, therefore, be violative of the seminal principle of equality enshrined in Article 14 read with Article 15(1). Article 15 covers every sphere of State action, including legislation. It also covers executive action, including statutory. The prescription as to reservation in favour of women WP(C)34796/08 -: 6 :- as provided by Section 28A of the Act is, as already noticed, only the mandatory minimum. That legislative command cannot be taken as prescribing any outer limit. In the absence of any outer limit or maximum permissible reservation in favour of women, as a prescription under the Act, the Registrar is powerless to issue any circular fixing any such limit. Hence, if at all there is any such circular, that would also fall, being in excess of authority available under Section 66A of the Act, to give directions, subject to the provisions contained in the Act and Rules. Any direction issued under Section 66A has to be in conformity and consonance with the Constitution of India and in furtherance of the purposes of the Act, which is nothing but the orderly development of the co-operative sector, by organizing co-operative societies as self governing, democratic institutions, to achieve the objects of equality, social justice and economic development, as envisaged in the WP(C)34796/08 -: 7 :- Directive Principles of the State Policy in the Constitution. The provisions in Part IV of the Constitution are fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws - See Article 37. The fundamental fights emerging out of Article 14 and Clauses 1 and 3 of Article 15; the fundamental right to form associations or unions as guaranteed by Article 19(c); the directive principles of state policy as contained in Articles 38, 39(a), 39(b) and 39(c) and the manner in which Entry 32 of the State List in the Seventh Schedule is couched, would show that there could be no law validly made, confining the reservation in favour of women to be only to be for one seat, while earmarking seats in the committee of a co-operative society. The argument on behalf of the respondents in that regard, therefore, fails. 9.The amendment as Clause 5.7(a) is not pressed WP(C)34796/08 -: 8 :- into service at the time of arguments. Not only that, the Joint Registrar is justified in taking the view that there could not be a sweeping amendment of the bye-laws to rope in all possible activities as the objects of one co-operative society when the co-operative sector envisages different types of societies. 10.The refusal to grant the amendment as Clause 5.7(b) is that it cannot be registered as sub- clause (b) because sub-clause (a) is not being approved. This is only a technical matter and would stand rectified when the petitioner re- submits the request by deleting clause 5.7(a) and re-numbering the present proposed clause 5.7(b) as clause 5.7(a). 11.The clause 5.7(c), as suggested, relates to the extension of activity to farm tourism. The Joint Registrar has taken the view that it cannot be treated as a possible activity and the chance of WP(C)34796/08 -: 9 :- success for the bank in that field appears to be bleak. The success or otherwise of a particular project of a bank is a matter that has to be left predominantly to the wisdom of the General Body. The General Body, having resolved to go ahead with such activity, the refusal to register that, would be without jurisdiction. Therefore, the clause which now stands as 5.7(c) in Ext.P1 needs to be approved, on proper re-numbering of the proposal. It shall be so done unless the Joint Registrar concludes that such amendment of the bye-laws is impermissible on any specific ground referable Section 7(c) of the Act. For the aforesaid reasons, this writ petition is ordered as follows: On the petitioner re-submitting the amendments to the bye-laws in the light of the aforesaid, the Joint Registrar shall issue orders regulated by and in terms of what is stated above. This shall be done within three weeks of the receipt of the WP(C)34796/08 -: 10 :- amendments on re-submission and after hearing. THOTTATHIL B. RADHAKRISHNAN, Sha/ JUDGE.