Kumaran and Another vs Government of Kerala and Others

G.H. Guttal, J.—The question for consideration in this Original Petition under Article 226. of the Constitution of India, is, whether a member nominated by the Government to the Managing Committee of an Apex Society u/s 31 of the Kerala Cooperative Societies Act (the Act for brevity), has the right to. vote at the election of the Chairman, Vice-Chairman and the Executive Committee. The question arises out of the facts stated in the next paragraph.

The Kerala Kerakarshaka Sahakarana Federation Limited (the KERAFED for brevity), the Respondent No. 4 herein, is an Apex Society as defined in Section 2 (a) of the Act. The Respondent Nos. 5, 6 and 7 were nominated as members of the committee (the Board of Directors) of the KERAFED, by Government''s order dated 2nd February 1994. The nomination was in exercise of the Government''s power u/s 31 of the Act and Rule 37 of the Kerala Co-operative Societies Rules (the rule for short). The validity of the nominations is not disputed.

The Petitioners are the elected members of the Board of Directors of the KERAFED. The Respondents 5 and 7 were elected Chairman and Vice-Chairman respectively in the election held on. 7th February 1994. The votes of Respondents 5, 6 and 7 who are nominated and not elected members of the Board were taken into account in this election.

The Board of Directors is scheduled to elect members of the Executive Committee on 28th February 1994. The Petitioners. who contend that the nominated members of the Board of Directors are not entitled to vote, apprehend that they will vote at this elestion. They seek a declaration that the election of Respondents 5 and 7 as Chairman and Vice-Chairman is void and a direction that the Respondents 5, 6 and 7 shall not vote at the election of the Executive Committee scheduled) to be held on 28th February 1994.

Although the elections are over, a decision on the question raised, affects validity of the election. Therefore I am considering the question.

To begin with, the meaning of Section 31(3) and Rule 37(2) may be understood.

Sub-section (3) of Section 31 of the Act precludes the nominated members of an Apex Society from taking part in the discussion of any no-confidence motion or vote on any such motion". The restraint on the right of the nominated members of an Apex Society to vote is thus limited to the vote on the no-confidence motion. The right to vote generally and on any resolution except the no-confidence motion is preserved in tact.

Rule 37 prescribes, the procedure for appointment of nominees and their removal from the committee of a society. In the case of apex society the nomination of members pi the committee has to be done by the Government and in the case of other societies by the Registrar. Sub-rule (2) of Rule 37 defines the powers of the members nominated u/s 31. Their "powers duties, the functions and responsiblities" shall be the same as those of a member duly elected: under the bye-laws. Thus the nominated members have been statutorily equated with the elected members, in so far as their "powers, duties functions and responsibilities" are concerned. In Pavihran v State of Kerala 1979 KLT 874 this, Court endorsed recognition of the fact that "powers, duties, functions and responsibilities" of a nominated member, include the right to vote at the election of the office bearers of the society (see paragraph 3 of the judgment). Another inference that follows from these words is that there is no hierarchy between the elected members of the committee and the members nominated to the committee by the Government, in regard to their powers, duties and responsibilities.

Mr. Damodaran, called in aid, Clause (b) of the proviso to Section 20 of the Act and urged that nominated member''s right to vote is excluded where election of office bearers is concerned. The enacting part of Section 20 lays down that every member of a society shall have one vote in the affars of the society. But the proviso makes an exception in the case of members nominated by the Government on the committee of the society. Clause (b) of the proviso affirms the right of the nominated member to "have one vote". But it takes away the right to such vote where it is to be exercised "for election of office, bearers of the society".

It is necessary to understand the scope of Section 20. The subject matter of Section 20 is "votes of members" and not "votes of member of the committee". Clause (b) of the proviso apparently precludes Government''s nominees to toe committee from voting and thereby subordinates them to the elected members. On the other hand, Section 31 and Rule 37, negative such differential status in the matter of voting. The golden rule is to find out the intention of the legislature.

The marginal note of Section 20 is "votes of members"''. Section 31 was substituted in the Act by Kerala Co-operative Societies (Amendment) Act 19 of 1987 which came into force on 25th August 1987. The original section had the marginal note "Nominees of Government on committee of a society". The amendment changed the very subject of the section by changing the marginal note as "Nominees of Government on committee of an apex or central society". Therefore with effect from 25th August 1987 the subject matter of the enactment of Section 31 is "Apex or Central Society". Section 31 is therefore a specific or special provision in regard to the nominees.

At this stage I will restate the relevant rules of interpretation of statutes and consider the effect of Section 31 and Rule 37.

Sections 20 and 31 of the Act and rules 35, 37 and 43 are part of a legislative scheme. These provisions have to be considered as part of the scheme. If each section is considered in isolation a distorted picture will emerge. The language of the sections, the effect of the scheme, the point of time at which a particular provision was introduced, the chronology of the amendments are all relevant in considering their effect.

Clause (b) of the proviso to Section 20 precludes nominees from voting at the election of the office bearers. But the proviso enacts what is beyond the purview of the enacting part of the section. Since the proviso speaks the last intention of the makers of the law it should in ordinary circumstances prevail. (Craies on Statute Law, 7th Edition, page 220 and Maxwell on Interpretation of Statutes, 12th Edition, Page 190). But application of this rule mechanically would result in rendering Sub-section (3) of Section 31 of the Act and Rule 37(2) of the rules redundant. Redundancy cannot be attributed to a legislative enactment. Sub-section (3) of Section 31 which by implication preserves the right of nominees to vote on all issues except the no-confidence motions read with, Sub-rule (2) of Rule 37 is repugnant to Clause (b) of the proviso to Section 20. The rule of interpretation in such cases is that the latest expression of the Will of the legislature must always prevail. (Craies on Statute Law, 7th Edition, Page 366). Section 31 re-enacted by Act 19 of 1987 which kept in tact the right to vote, is so inconsistent with and- repugnant to Clause (b) of the proviso to Section 20 that they cannot stand together. Sub-section (3) of Section 31 by its re-enactment in 1987 is a later enactment in so far as the nominees'' right to vote is concerned. In such cases the rule of interpretation is that the earlier enactment stands abrogated. (Maxwell on Interpretation of Statutes, 12th Edition, Page 193).

Now consider the scheme of the Act and the rules. The elections take place in accordance with the procedure laid down in Section 35. Thereafter the committee is constituted. It includes the nominated members as well. Then Rule 37 defines the powers, functions, duties and responsibilities of the nominated members. They are equated; with the elected members. Having thus defined the powers, duties and functions of the nominated members Rule 43 provides for the election of President, Vice-President, Treasurer and other office bearers. Rule 43 contains no restraint on the right of the nominated members to vote at the election of the office bearers. Sub-section (3) of Section 31 expresses the legislative intent to limit the restraint on voting only to no-confidence motions. On 25th August 1987 when the present Section 31 was enacted, the legislature could have precluded nominated members from voting at the election to the office bearers of apex societies. But it did not; thereby reaffirming that the restraint on the "right to vote" was confined to no-confidence motions. '' The legislative intent to limit or curtail the right of nominees to vote on no-confidence motion has been expressed in specific words. This implies that the legislature did not intend to restrain nominated members from voting at the election to the office bearers, or on other issues.

The purpose of Section 31 is to protect the Government''s interest created by its subscription to the share capital or its guarantee of the repayment of loans. It is for this reason that the Government nominates its members on the committees of apex societies. Having empowered the Government to protect its interest through nominated members the legislature could not have intended to nullify the power granted by it by preventing the nominees from voting at the election of the office bearers.

The judgment in C.M. Gheevarghese v. The Deputy Registrar of Co-operatvoe Societies and Ors. (1) appears to strike a discordant note. It held ihat nominated members of a committee have no right to vote at the election of the office bearers.

The case of C.M. Gheevarghese v. The Deputy Registrar Co-operative Societies 1975 KLT S.N. 49 127, arose out of somewhat extra ordinary circumstances. Two officers of the Government were nominated to the committee on 25th March 1975. A meeting to elect the President was to be held on 2nd April 1975. On 29th March 1975 the Government withdrew the two officers nominated, by it and in their place appointed two persons who were not officers of the Government. These two nominees inducted three days before the election,, were polling agent and counting agent of one panel of candidates for presidency. They were held to have been biased in favour of one panel of can didates. The biased nomination, designed to promote the cause of a particular candidate went into the decision of this Court.

Secondly the effect of the provisions of Sub-rule (2) of 37 which equates the voting power of nominated and elected members were not pointed out to the Court.

Thirdly Sub-section (3) of Section 31 was re-enacted by legislative amendment on 25th August 1987 introducing thereby later enactment abrogating the earlier provisions.

Fourthly there is the later decision of this Court in Pavithran v. State of Kerala 1979 KLT 874. Upon interpretation of Rule 37(2) this Court held that a nominated member of the committee has the right to vote at the election of the office bearers.

I sum up my conclusions:

(i) Sub-section (3) of Section 31 of the Act precludes nominated members from voting only on no-confidence motions. This, by implication means that nominated members are not restrained from voting on any other matter in regard to the affairs of the society. Sub-rule (2) of Rule 37 equates the nominated members with the. elected members in. all matters including the right to vote except where the right to vote has been expressly excluded. The legislative intention clearly is to create, in the nominated members, the right to vote on all matters except no-confidence motions.

(ii) Clause (b) of the proviso to Section 20 is repugnant to Sub-section (3) of Section 31 and Sub-rule (2) of Rule 37 in so far as it excludes the right of nominated members to vote at the election of office bearers. Since Sub-section (3) of Section 31 is an enactment later in point of time, it abrogates Clause (b) of the proviso to Section 20 in so far as the later precludes nominated members from voting at the elections of the office bearers.

(iii) The judgment in C.M. Gheevarghese v. The Deputy Registrar of Co-operative Societies and Ors. 1975 KLT S.N. 49 127 was delivered before Section 31 was re-enacted by Act 19 of 1987. For this reason and for the reasons stated in paragraph 9 of this judgment, the judgment has no application to this case.

For all these reasons the Original Petition is dismissed