W.A.No. 14 of 2016 & W.A.No. 159 of 2016 (Kerala High Court, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE V.CHITAMBARESH &** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 07TH DAY OF DECEMBER 2018/16TH AGRAHAYANA, 1940** ## **W.A.No. 14 of 2016** **AGAINST THE JUDGMENT DATED 12-10-2015 IN W.P(C).NO.24002/2015 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD PARTY:** **KANHIKAVU KUNJIKISHNAN, ANITHA NIVAS, THIRUMANGALATH, NADUVANOOR, KOYILANDY, KOZHIKKODE.** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS:** - **1 ALI KOYA,(MEMBER NO. 111), S/O. LATE MOIDEEN, AGED 55 YEARS, THEKKAYIL HOUSE, NADUVANNUR P.O., KOZHIKKODE, PIN - 673 614.** - **2 STATE CO-OPERATIVE ELECTION COMMISSIONER, THIRUVANANTHAPURAM - 695 001.** - **3 ELECTORAL OFFICER,** **ORAVIL BLACKSMITH CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD NO.K.V.IND(D) 19, ORVIL P.O., NADUVANNUR, KOZHIKODE - 673 614 (DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICER, KOZHIKKODE).** - **4 RETURNING OFFICER,** - **ORAVIL BLACKSMITH CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO.K.V.IND(D) 19,ORVIL P.O., NADUVANNUR, KOZHIKODE-673 614 (SENIOR CO-OPERATIVE INSPECTOR, KERALA KHADI AND VILLAGE INDUSTRIES OFFICER, KOZHIKKODE).** - **5 THE SECRETARY,** **ORAVIL BLACKSMITH CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO.K.V.IND(D) 19, ORVIL P.O., NADUVANNUR - 673 614.** **R1 BY ADV.SRI.SANTHARAM P. & ADV.SMT.REKHA ARAVIND R2, R3 & R4 BY SMT. K.R.DEEPA, SR.G.P. (B/O)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH WA.159/2016, THE COURT ON 07.12.2018 DELIVERED THE FOLLOWING:** WAs14 & 159/2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 07TH DAY OF DECEMBER 2018/16TH AGRAHAYANA, 1940** ## **W.A.No. 159 of 2016** **AGAINST THE JUDGMENT DATED 12-10-2015 IN WPC 24256/2015 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 KUNHIKRISHNAN, ANITHA NIVAS, NADUVANNOOR P.O., KOZHIKODE DISTRICT.** - **2 RAGHAVAN, CHENGODE HOUSE, NADUVANNOOR P.O., KOZHIKODE.** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE PROJECT OFFICER/DISTRICT REGISTRAR, KHADI AND VILLAGE INDUSTRIES OFFICE, KOZHIKODE DISTRICT-673001.** - **2 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695001.** **3 THE RETURNING OFFICER, ORAVIL BLACKSMITHY CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO. KVIND(D) 19, NADUVATHOOR P.O., KOZHIKODE DISTRICT-673330 (SENIOR CO-OPERATIVE INSPECTOR, KERALA KHADI GRAMA VYAVASAYA BOARD, KOZHIKODE).** WAs14 & 159/2016 3 - **4 THE ELECTORAL OFFICER, ORAVIL BLACKSMITHY CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO. KVIND(D) 19, NADUVATHOOR P.O., KOZHIKODE DISTRICT-673330 (S.C.I., KOZHIKODE (A.R. IN-CHARGE)/DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICER, KERALA KHADI GRAMA VYAVASAYA BOARD, KOZHIKODE).** - **5 THE ORAVIL BLACKSMITHY CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO.KVIND(D) 19, NADUVATHOOR P.O., KOZHIKODE DISTRICT-673330, REPRESENTED BY ITS SECRETARY.** - **6 THE REGISTRAR, KHADI AND VILLAGE CO-OPERATIVE SOCIETY (SECRETARY, KERALA KHADI GRAMA VYAVASAYA BOARD, THIRUVANANTHAPURAM-695001).** - **7 THE ADMINISTRATIVE COMMITTEE, ORAVIL BLACKSMITHY CARPENTRY WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY LTD.NO.KVIND(D) 19, NADUVATHOOR P.O., KOZHIKODE DISTRICT-673330, REPRESENTED BY ITS CONVENER.** - **8 ASSAIN KOYA, MANATTU, NADUVANNUR P.O., KOZHIKODE, PIN-673614.** **9 K.M.SATHYAN, THIYYANKANDI, NADUVANNUR P.O., KOZHIKODE, PIN-673614.** - **10 SETHUMADHAVAN, KARUNALAYAM, NADUVANNUR P.O., KOZHIKODE, PIN-673614.** **R1 BY SRI.M.SHARAFUDHEEN, SC, KERALA KHADI AND VILLAGE INDUSTRIES BOARD R2 TO R4 & R6 BY SMT.K.R.DEEPA, SR.G.P.(B/O) R5 BY ADV. P.P. JACOB** **R7 & R9 BY ADV. SRI.MANSOOR B.H.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH WA.14/2016, THE COURT ON 07.12.2018 DELIVERED THE FOLLOWING:** WAs14 & 159/2016 4 “CR” ## Judgment Chitambaresh, J. 1. Reservation for women and members of Scheduled Castes or Scheduled Tribes in the managing committee of a society is to effectuate socio, economic and political justice assured by the Preamble and Articles 38 and 46 of the Constitution of India (See: State of Uttar Pradesh v. COD.Chheoki Employees' Co-operative Society Ltd. [(1997) 3 SCC 681]). 2.There shall be reserved in the committee of every society three of the total seats for women members and one seat for a member belonging to the Scheduled Castes or the Scheduled Tribes. This is so notwithstanding anything to the contrary in the Kerala Co- operative Societies Act, 1969 ('the Act' for short) or the Rules thereunder or the bye-laws. The statutory prescription is contained WAs14 & 159/2016 5 in Section 28A of the Act which is extracted below: “ 28A. Reservation for women members and members belonging to Scheduled Castes or Scheduled Tribes in the Committee.- (1) Notwithstanding anything contained in this Act, the rules or the bye-laws, there shall be reserved in the committee of every society, three of the total seats for women members and one seat for a member belonging to the Scheduled Castes or the Scheduled Tribes. (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 women or members belonging to Scheduled Castes or 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 Scheduled Tribes, the Government or the WAs14 & 159/2016 6 Registrar shall nominate women and persons belonging to Scheduled Castes or Schedules 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.” 3.The reservation for women members and members belonging to Scheduled Castes or Scheduled Tribes in the committee shall not however prevent them from being elected to the non-reserved seats. What will happen if there are no women members or members belonging to Scheduled Castes or Scheduled Tribes in the society as in the instant case? The society wherein the election has to be held is - Oravil Blacksmithy Carpentry Workers Industrial Co- operative Society Ltd. - which is a society for blacksmiths and carpenters. The society is manned by the administrative committee constituted by the Government as early as on 3.9.2014 and election WAs14 & 159/2016 7 to the managing committee is awaited. The election has got delayed due to the practical difficulty in implementing Section 28A of the Act owing to the absence of members in the reserved category. The learned single Judge has by the judgment impugned directed that the election to the society shall be conducted keeping all the seats open for the general category alone. 4.The solution to the piquant situation can be found in Section 28A(3) of the Act which provides for the nomination of the members in the reserved category to the elected managing committee. Sufficient quorum to take a decision by the managing committee would be there after the election is conducted to the seven seats from the open category. The managing committee can thereafter enrol new women members and members belonging to Scheduled Castes or Scheduled Tribes to the society by majority decision. The Government or the Registrar can thereafter nominate them (who have already enrolled as members) to fill up the four seats WAs14 & 159/2016 8 remaining out of the eleven seats. Section 28A(4) of the Act clarifies that a person so nominated shall have all the powers of a member elected and shall hold office during the pleasure of the nominator. 5.Yet another solution to this impasse is to exempt the society from the provisions of Section 28A of the Act by the Government by resort to Section 101 of the Act by general or special order. The Government can so exempt the society in public interest as has been held in Kumarakom Lime Shell Co-operative Society Ltd. v. State of Kerala [2012 (3) KLT 696]. It was held therein as follows: “Scope of Section 28A has to be understood realistically and wherever women are not stakeholders in a society, there is no scope for providing women's representation in the managing committee of such societies. In our view, the Government in such cases in exercise of powers under Section 101 should exempt the society from the operation of Section 28A that is to exempt it WAs14 & 159/2016 9 from having women's representation in the managing committee of the society.” There is no case that any one of the persons interested have hitherto moved the Government for obtaining exemption to the society from the rigour of the provisions of Section 28A of the Act. 6.The entire scenario has changed due to efflux of time and the election process has to commence afresh which would mean that a preliminary voters list would be published anew. We say so since one of the writ appeals pertains to the alleged absence of eligible members from the preliminary voters list earlier published which grievance can also be addressed to. The total number of seats in the managing committee shall be increased to eleven [as permitted under Section 28(1A) of the Act] instead of seven as originally proposed. Otherwise there will be no quorum for the managing committee since three members in the general category out of the seven members cannot by themselves take a valid decision. Fresh WAs14 & 159/2016 10 notification shall be published and election conducted in strict adherence to Section 28A of the Act if no exemption has been obtained by the society by resort to Section 101 of the Act. The needful in this regard shall be done within a period of six months and the impugned judgment permitting to skip Section 28A of the Act is hereby set aside. The writ appeals are allowed. No costs. Sd/- ## V. CHITAMBARESH, JUDGE Sd/- ## R. NARAYANA PISHARADI, JUDGE Sha/051218