IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WA.No. 1636 of 2011() --------------------- AGAINST THE ORDER IN WPC.26196/2011 Dated 14/10/2011 .................... APPELLANTS : RESPONDENTS 1 TO 4 IN WPC --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM 3. THE KERALA CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM 4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, IDUKKI. BY SPECIAL GOVERNMENT PLEADER MR. D. SOMASUNDARAN RESPONDENTS : PETITIONER & RESPONDENTS 5 & 6 IN WPC ---------------------------------------------------- 1. P.N.VIJAYAN, PRESIDENT, THE IDUKKI DISTRICT CO-OPERATIVE BANK, IDUKKI COLONY P.O., IDUKKI 685602 2. DEENAMMA DANIEL, PAZHAYAVEETTIL, UPPUTHARA P.O., IDUKKI DISTRICT 685 505 3. LEELAMMA JOSE, THAZHATHUVEETTIL, EAST KALOOR, VIA. THODUPUZHA, IDUKKI DISTRICT 685 584 BY ADV. P. C. SASIDHARAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2011, ALONG WITH WPC NO. 26196 OF 2011, WPC NO. 27107 OF 2011 AND W.A NO. 1729 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag. C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.A. Nos. 1636 & 1729 Of 2011 and W.P(C) Nos. 26196 & 27107 Of 2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 23rd day of November, 2011 JUDGMENT Manjula Chellur, Ag.C.J. The writ petitioner in W.P.(C) No. 26196 of 2011 in his personal capacity, being the President of the Idukki District Co-operative Bank, approached the learned Single Judge challenging Ext. P3 order dated 16.09.2011 issued by the Registrar of Co-operative Societies, wherein two women came to be nominated, who are arrayed as respondent Nos. 5 and 6, as the Directors of the Board of Idukki District Co-operative Bank Limited, by virtue of powers vested in him under sub Section (3) of Section 28A of the Kerala Co-operative Societies Act, 1969. 2. The learned Single Judge, by interim order dated 14.10.2011, directed to stay the operation of Ext. P3 dated 16.09.2011. This resulted in W.A. No. 1636 of 2011. A similar nomination also came to be made with regard to the Kannur District Co-operative Bank and it became the subject matter of challenge in W.P(C) No. 27107 of 2011. The learned Single Judge, following the order dated 14.10.2011 in W.P (C) No. 26196 of 2011 W.A No. 1636 of 2011 and connected cases :2: proceeded to stay the operation of Ext. P11 in W.P.(C) No. 27107 of 2011. Aggrieved by the same the appellant in W.A. No. 1729 of 2011 is before us. 3. The main contention of the respondents/writ petitioners before the learned Single Judge was that the amended Act 7 of 2010, which came into force w.e.f. 28.04.2010, does not invalidate the existing managing committee elected prior to coming into force of Act 7 of 2010. Therefore, irrespective of amendment by virtue of Act 7 of 2010, existing committees should continue, as there was no power vested in the respondent authorities to nominate the women members in order to comply with the amended provision of sub section (3) of Section 28 A. The learned Single Judge, after referring to the earlier provision - Section 28A(1) & (3) and also the amended provision - Act 7 of 2010, opined that, by virtue of Ordinance No. 44 of 2011 of the Government dated 28.04.2011, clarified the position indicating that the provision introduced in sub Section (1) of Section 28(A) of the Act in respect of committees of societies constituted prior to the commencement of Kerala Co-operative Societies (Amendment) Act, 2010, the number of women members should not be increased before expiry of the term of such committees. W.A No. 1636 of 2011 and connected cases :3: 4. Aggrieved by the same, aforesaid two appeals came to be filed by the State, contending that, the very intention of amendment brought to Section 28(A) by virtue of Act 7 of 2010 was to encourage more women to be in the administration of the co-operative banks. Therefore, interim order of the learned Single staying the operation of Exts. P3 & P11 respectively in both writ petitions would defeat the purpose of amended Act 7 of 2010. Unamended Section 28(A) is extracted as under : 28A(1) “Notwithstanding anything contained in sub section (1) of S.28, there shall be reserved in the committee of every primary credit society, every District Co-operative Bank, the Kerala State Co-operative Bank Ltd., and the Kerala State Co-operative Agricultural and Rural Development Bank Ltd, one seat for a woman member and one seat for a member belonging to the Scheduled Castes or the Scheduled Tribes, and for that purpose, the society or the bank, as the case may be may, if they consider it necessary so to do, increase the total number of members of the committee by two more members. (2) Nothing contained in sub-section (1) shall prevent the women members and members belonging to the Scheduled Castes or Scheduled Tribes from being elected to the non-reserved seats in the committee. (3) Where there is no representation of woman or members belonging to the Scheduled Castes or Scheduled Tribes to the committee of a society or a Bank referred to in sub section (1) at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992 or thereafter :- W.A No. 1636 of 2011 and connected cases :4: (i) in the case of the Kerala State Co-operative Bank Ltd, and the Kerala State Co-operative Agricultural and Rural Development Bank Ltd., the Government, and (ii) in the case of primary credit society or a District Co- operative Bank, the Registrar, may nominate a woman member or a member belong to the Scheduled Castes or Scheduled Tribes to the committee of such Bank or Society, if necessary, by increasing the total number of members of such committee by two more members. (4) A person nominated to the committee of a society or Bank shall have all the powers of a member elected to such committee and shall hold office during the pleasure of the Government or the Registrar, as the case may be.” Section 28A(1) and section 28A(3) subsequent to Act 1992 again came to be amended by Act 7 of 2010, which reads as under. “28A(1) Notwithstanding anything contained in this Act, the rules of the bye-laws, there shall be reserved in the committee of every society, three of the total seats for woman members and one seat for a member belonging to the Scheduled Castes or the Schedules Tribes. (2) Nothing contained in sub-section (1) shall prevent the women members and members belonging to Scheduled Castes or the Scheduled Tribes from being elected to the non-reserved seats in the committee. (3) Where there is no representation of woman or members belonging Schedules Castes or the Scheduled Tribes in the committee of a society including those of the societies formed exclusively for the benefit of women and for persons belonging to Scheduled Castes or the Scheduled Tribes, the W.A No. 1636 of 2011 and connected cases :5: Government or Registrar shall nominate women and persons belonging to Scheduled Castes or the Scheduled Tribes, to the elected committee from among the members of such societies. (4) A person nominated to the committee of a society or Bank shall have all the powers of a member elected to such committee and shall hold office during the pleasure of the Government or the Registrar, as the case may be.” 5. A reading of Section 28A(1) would definitely indicates that a reservation in the committee of every society must be made, providing three of the total seats for the women members and one seat for the member belonging to the Scheduled Caste/Scheduled Tribe. The word reserved here indicates and refers to the existing committee, where in such reservation is already made. In the present two societies, what we notice is that already the committees were in existence and one woman member was already one of the directors of the Board as on the date of coming into force of Act 7 of 2010. As there was some doubts among the societies concerned, the ordinance No. 44 of 2011 came to be promulgated on 28.04.2011. The very promulgation of this ordinance indicates that the intention of the State was to remove the doubt, whether it applies to existing committees as well. The wordings of the Ordinance as stated above, further clarifies the situation that the mandate of having three women member and one from Scheduled Caste/Scheduled Tribe in the W.A No. 1636 of 2011 and connected cases :6: District Co-operative Bank or Central Co-operative Bank is only a prospective mandate and it does not apply to existing committees. Therefore, the nomination of two women member to both the societies referred to above with retrospective effect when the committees came into existence is not at all envisaged by virtue of the Ordinance No. 44 of 2011. 6. In that view of the matter, the learned Single Judge was justified in saying that as long as existing society had complied with the provisions contemplated under Section 28A of the Act as amended by Act 5 of 1992, there was no violation of any of the provisions of Section 28(A) and (3) and the Act 7 of 2010 will be applicable only to those committees which come into existence subsequent to coming into force of Act 7 of 2010. 7. In view of the above discussion and reasoning, we are of the opinion that the learned Single Judge was justified in staying operation of Exts. P3 and P11 respectively. 8. Then coming to the very challenge made to this Exts. P3 and P11, as stated above in the writ petition the affected private parties i.e. women candidates, who were nominated as the Directors of the Board of the central society, though were served with notice, are not before us, neither in person nor represented by any advocate. W.A No. 1636 of 2011 and connected cases :7: 9. In view of the above discussion, we are of the opinion that nothing remains to be considered in the writ petitions as well. We quash Ext.P3 in W.P.(C) No. 26196 of 2011 and Exts. P11 and P12 in W.P (C) No. 27107 of 2011. Accordingly, both the writ petitions are allowed and writ appeals are dismissed. Sd/- MANJULA CHELLUR, Ag. CHIEF JUSTICE Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd