K. Sugathan v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945** **WA NO. 1230 OF 2023** **AGAINST THE JUDGMENT DATED 12.6.2023 IN WP(C) 14523/2023 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **K.SUGATHAN, AGED 62 YEARS S/O KUMARAN, PRESIDENT, VYTHIRI PRIMARY CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD, KALPETTA, WYANAD DISTRICT, PIN - 673121** **BY ADVS.M.M.MONAYE M.PAUL VARGHESE K.V.SANOSH ANJANA SUGUNAN KIRAN PAUL** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA DEPARTMENT OF CO-OPERATION REPRESENTED BY ITS SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM, PIN – 695001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O, THIRUVANANTHAPURM, PIN - 695014** - **3 THE KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.** - **POST BOX NO.56, STATUE JUNCTION, THIRUVANANTHAPURAM, PIN – 695001, REPRESENTED BY ITS MANAGING DIRECTOR.** - **4 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN – 695033 REPRESENTED BY ITS SECRETARY.** - **5 RETURNING OFFICER, ASSISTANT REGISTRAR (EB SECTION), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O, THIRUVANANTHAPURM, PIN - 695014** **ANN MARIA FRANCIS - R3** ## **SR GP SRI BIMAL K NATH** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 9.1.2024, THE COURT ON 16.01.2024 DELIVERED THE FOLLOWING:** 2 ## **Writ Appeal No.1230 of 2023** **AMIT RAWAL & C.S.SUDHA, JJ.** **----------------------------------------------------Writ Appeal No.1230 of 2023 ----------------------------------------------------Dated this the 16[th] day of January, 2024** ## **J U D G M E N T** ## **C.S.Sudha, J.** This _intra_ court appeal has been filed by the petitioner in W.P. (C)No.14523/2023 aggrieved by the dismissal of the same by judgment dated 12/06/2023. The respondents herein are the respondents in the writ petition. The parties and the documents in this appeal will be referred to as described in the writ petition. 2. The petitioner is the President of Vythiri Primary Co-operative Agricultural & Rural Development Bank Ltd. (the Bank). The Bank is a member of the third respondent, namely, the Kerala State Co-operative Agricultural & Rural Development Bank Ltd. (the Apex Society). As per Bylaw 28 of the Apex Society, the Board of Directors, among others shall consist of one member each from a revenue district elected by and from among the delegates of the shareholding primary bank. As per Ext.P1 3 ## **Writ Appeal No.1230 of 2023** resolution dated 03/04/2023 of the Director Board of the Bank, the petitioner was chosen as the delegate to the Apex Society. Bylaw 29(b) says that a primary bank will not be eligible to be represented on the Board of the Apex Society, if the primary bank is in arrears to the latter for a period exceeding six months. Most of the members of the Bank situated in Wayanad district, belong to Scheduled Caste and Scheduled Tribe. A major portion of the land in which the Bank is situated has been notified as Ecologically Fragile Land or land coming within the zone of Ecologically Fragile Land (EFL zone). The Government has taken over the loans of members of the EFL zone. Due to frequent farmers' distress, the Agricultural Debt Relief Commission has passed orders writing off the loans and so huge amounts are now due from the Government. Though the Apex Society ought to have made adjustments as per the orders of the Government and the Agricultural Debt Relief Commission, they failed to do so. The written off amounts which are due from the Government have also been included in the demands made by the Apex Society. Thus, the Bank has been shown to be a defaulter of the Apex Society. This default would be treated as a disqualification under the Bylaw and as per the provisions of the Co-operative Societies Rules, 1969 (the 4 ## **Writ Appeal No.1230 of 2023** Rules). Hence the writ petition _inter alia_ praying for a writ of mandamus for directing respondents 4 and 5 not to reject the nomination of the petitioner in the election to the Board of Directors of the Apex Society on the ground that the Bank is in arrears or is a defaulter. 3. Heard both sides. 4. The learned counsel for the petitioner drew our attention to the proviso to clause (e) to Rule 46 which says that in case of delegates of Primary Co-operative Agricultural Development Banks in the Committee of the Kerala State Co-operative Agricultural Development Bank and of Primary Housing Societies in the Committee of the Kerala State Cooperative Housing Federation Ltd., the disqualification shall apply only if the default exceeds six months. According to him, the tense 'is' has been used in the Rule which makes the intention of the legislature clear that the disqualification would be attracted only if default is committed while the person is a member of the committee of another Society. The mere fact that the Society who is sending him as a delegate might have been in default to the other Society, would not be a valid ground for disqualification to contest and to sit on the committee of another Society when the proviso clearly says 5 ## **Writ Appeal No.1230 of 2023** that disqualification shall apply only if the default of the Society exceeds six months. The disqualification will come into play only if the default continues beyond a period of six months of the delegate sitting on the committee of another Society. The mere fact that at some point of time in the past there was a default would not be or should not be made use of to declare that an elected member has ceased to be a member before the stipulated period. This aspect has not been looked into by the learned single Judge and hence the impugned judgment requires to be interfered with, goes the argument. In support of the argument, reference has been made to the dictums in **Madanamohanan Kartha v. Ernakulam Service Co-operative Bank Limited, 1983 KLJ 345** and **Purushothaman Nair R. v. State of Kerala, 2008(4) KHC 764** . 5. _Per contra_ , it was submitted by the learned counsel for the respondents that as per Bylaw 29(b) which corresponds to clause (e) of Rule 46, the petitioner is a defaulter and hence disqualified from contesting in the election. The relevant provisions have been rightly noticed by the learned Single Judge and hence the impugned judgment calls for no interference, submitted the respondents. 6 ## **Writ Appeal No.1230 of 2023** 6. In **Madanamohanan Kartha** ( _Supra_ ), relied on by the petitioner, a Division Bench of this Court explained the difference between Rule 44(1) and Rule 44(2). Rule 44 dealing with disqualification of membership of a committee says that no member of a Society shall be eligible for being elected or appointed as a member of the committee of the Society under Section 28 if any of the grounds under clauses (a) to (l) are attracted. This Court held that Rule 44(2) deals with a supervenient disqualification or a disqualification that has emerged or is noticed subsequent to the election. While Rule 44(1) deals with pre-existing disqualifications, Rule 44(2) deals with a disqualification that is discovered and emerged subsequently. The grounds of disqualification prescribed by sub-rule (1) apply to the election or appointment of a member as a member of the committee of a society; in other words, they deal with the election or appointment of members who are subject to pre-existing disqualification. Sub-rule (2) as its opening words state, prescribe the effect of supervening disqualification or a disqualification that is discovered or noticed after the election or appointment. 7. Admittedly, Rule 44 is not the relevant provision that is 7 ## **Writ Appeal No.1230 of 2023** applicable to the facts of the present case. It is also not Rule 45 which is attracted because Rule 45 deals with disqualification of a member of a Society to be delegate of another Society. Rule 45(1) provides the personal disqualifications preventing a member of a society from being appointed to represent that society in the committee of any other society and to vote. Sub-rule (2) of Rule 45 prescribes situations where that member would incur personal disqualification resulting in cessation of the appointment as the delegate. Admittedly, the petitioner is not in default to the Bank of which he is a member. Therefore Rule 45 does not prohibit him from being a delegate in the election conducted to the Apex Society. The relevant Rule that is applicable in the case on hand is Rule 46(e) which reads thus - _“_ _**46. Term of office of member of committee who is delegate of another Society** . - A delegate of one society sitting on the committee of another society shall cease to be a member of such committee, -_ _(a) if the society which elected him as a delegate withdraws him or elects another delegate in his stead; or_ _(b) in case he was elected as a delegate by a society, on the supersession of the committee of such society under S.32;_ _Provided that the person or persons appointed under the said Section shall have power to nominate himself or one among them or any member of the society to the committee or another society; or_ 8 ## **Writ Appeal No.1230 of 2023** _(c) if the registration of the society, of which he is delegate, is cancelled, or_ _(d) if he incurs any disqualification mentioned in R.44, or_ _(e) if the society which sends him as delegate is in default to the society, in the committee of which he sits as a delegate:_ _Provided that in the cases of delegates of Primary Co-operative Agricultural Development Banks in the Committee of the Kerala State Co-operative Agricultural Development Bank and of Primary Housing Societies in the Committee of the Kerala State Co-operative Housing Federation Ltd., the disqualification shall apply only if the default exceeds six months._ _Provided further that in the case of delegates of Primary Agricultural Credit Societies in the Committee of the District Co-operative Banks, this disqualification shall apply only if the default exceeds ninety days; (f) if he ceases to be a member of the committee of the society which he represented;_ _(g) if he was nominated as such by the Administrator/ Administrators/Administrative Committee under the proviso to Rule 44A, when an elected committee of the society which he represented enters upon office, unless he is one among the members of the committee which entered upon office.”_ 8. Referring to the proviso to clause (e), the argument advanced by the learned counsel for the petitioner is that the disqualification contemplated under the aforesaid clause would arise only when the default continues for a 9 ## **Writ Appeal No.1230 of 2023** period beyond six months after the petitioner is elected to the Board. Before that, no disqualification arises. We are unable to accept the argument so advanced. Rule 46(c) brooks no ambiguity. A reading of Rule 46(e) makes it clear that a delegate of one society sitting on the committee of another society shall cease to be a member of such committee, if the society which sends him as a delegate is in default to the society, in the committee of which he sits as a delegate. Rule 46 is essentially a disqualification, which would arise the moment a delegate tries to sit in the committee. The situs and time of determining such disqualification is the submission of nomination on the date fixed for that purpose in terms of Rule 35A (6) as held by this Court in **Moosa v. Joint Registrar, 1994 KHC 445** and **Purushothaman Nair R. v. State of Kerala, 2008 (4) KHC 764.** Therefore, if a Society sending a delegate to another society, is disqualified under Rule 46(e) at the time of submission of nomination for the election to the committee of that society, its nominee cannot be a candidate in that election as he is disqualified. 9. Admittedly, the Bank is in default and therefore the petitioner is disqualified from contesting the election in the light of the aforesaid provisions of law. We find no infirmity in the impugned judgment calling 10 ## **Writ Appeal No.1230 of 2023** for an interference by this Court. In the result, the writ appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/