M.C. Sumathikutty Amma and Others vs State and Others

T.L. Viswanatha Iyer, J.—Against the order Ext. P7 of the second respondent disqualifying the petitioners from membership of the managing committee of the Pathanamthltta District Co - operative Bank Ltd. the petitioners have filed an appeal before the Government, a copy of the appeal being Ext. P8. They have also filed an application Ext. P9 for stay of operation of the order pending the appeal. The appeal is dated 1.2.1992, the order Ext. P7 itself being dated 25-1-1992. Ext. P8 states that the order was received by the petitioners on 30-1-1992, of As per a previous judgment this court in O.P. No. 20 of 1992, the second respondent had been directed to keep the order passed by him in the proceedings initiated earlier in abeyance for a period of two weeks from the date of communication of the order to the parties. This has been mentioned in Ext. P7 itself and therefore Ext. P7 takes effect only from the expiry of 14 days from 30-1-1992 when it was communicated to the petitioners, i.e., this order takes effect only after 13.2.1992. Though the petitioners seek to quash Ext. P7 as well as the proceedings leading thereto, I do not find it proper for this court to deal with the matter on merits. The petitioners have already retorted to the statutory remedy of filing appeal against Ext. P7 before the Government The questions involved are mainly questions of fact which cannot be properly adjudicated upon in a proceeding under Article 226. Petitioners appeal Ext. P8 was therefore the proper remedy.

The petitioners have also moved an application for stay. It is only proper that the same is disposed of by the Government expeditiously.

This should have been sufficient to dispose of the original petition. But the petitioners have inter alia challenged Rule 44 (1) (j) of the Kerala Co-operative Societies Act, 1969 (the Act), this being the provision under which they have been disqualified from membership of the managing committee of the Society. They point out that this is a point which they cannot raise before Government and that it has got to be dealt with in this petition. I am therefore dealing with the question.

According to the petitioners, rule 44 (1)(j) is beyond the rule making power of the Government u/s 109 of the Act. The contention is that as per sub-section (2) (xiv) of that section, qualifications or disqualifications for membership of the committee of a society are to be laid down by rules made by the Government. But Rule 44(i)(j) prescribes further disqualifications for such membership, i.e. beyond those laid down by the Government by the rules by barring membership to those who are "disqualified under any other provisions in the bye-laws of the society". This is stated to be beyond the rule making power of Government as there is an abdication of Government''s functions to the makers of the bye-laws of the society. The contention is that either the Government frames rules and prescribes the qualifications or disqualifications; or they do not. But they cannot leave it to the bye-laws to prescribe the qualifications or disqualifications even in part. I am unable to agree. Section 109(1) is the provision embodying the rule making power and conferring it on Government. It is in the most general terms, the only limitation being that the rules should carry out the purposes of the Act. Sub-section (2) only enumerates some of those powers comprehended in sub section (1). It is not exhaustive but only enumerative or illustrative. As elegantly stated by the Privy Council in the well known case of AIR 1945 156 (Privy Council)

In the opinion of their Lordships, the function of sub - section (2) is merely an illustrative one, the rule making power is conferred by sub - section (1) and "the rules" which are referred to in the opening sentence of sub - section (2) are (he rules which are authorised by it and made under sub section (1); the provisions of sub - section (2) are not restrictive of sub - section (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by sub - section (1).

(See also Shri Shiv Kirpal Singh Vs. Shri V.V. Giri, and Om Prakash and Others Vs. Union of India (UOI) and Others, )

The question to be asked is therefore whether rule 44 (1) (j) is within the rule making power conferred by sub - section (1) of section 109. I have already pointed out that the section is couched in very wide terms and the only condition to be satisfied by a rule made under it is that it should carry out the purposes of the Act. It cannot be disputed that the prescription of qualifications or disqualifications for membership of the managing committee of a society is necessary to carry out one of the purposes of the Act, namely to see that only proper and fit persons are placed in charge of the affairs of a society. Rule 44 (1) (j) serves this purpose, and is therefore within the purview of sub - section (1). Further what sub section (2) (xiv) of section 109 lays down is only that the qualifications or disqualifications for the membership of the managing committee shall be as laid down by the Government. Nothing in it prevents the Government from framing a rule prescribing qualifications or disqualifications for membership of the committee with reference to the bye - laws of the society. When the rule is framed in that fashion, that is also a prescription of qualifications or disqualifications by the rules. In fact, such a prescription with reference to the bye - laws appears to be eminently desirable. There may be cases where the peculiar features of particular societies require special qualifications or disqualifications for membership of the managing committee, which should appropriately be done only by provisions in the bye - laws. In framing the rules, Government cannot provide for all possible contingencies, or all the possible situations. Government omniscience cannot extend to that level. Each society may have its own peculiar features requiring different or additional qualifications or disqualifications to be prescribe. If that be the position, rule 44. (1)(j) cannot be said to be violative of the provisions of even section 109(2)(xiv) of the Act, as contended by the petitioners. The petitioners are not therefore entitled to get any declaration that rule 44(i)(j) is ultra vires Section 109 of the Act. The only relief to which the petitioners are entitled in this original petition is a direction to the first respondent to dispose of the petitioner''s application for stay Ext. P9 expeditiously.

The original petition is disposed of, declining the relief to quash Ext. P7. However, there will be a direction to the first respondent to consider and dispose of the appeal Ext. PS and the petition for stay Ext. P9 expeditiously. Government will pass orders on the application Ext, P9 within a period of two weeks from today. Pending disposal of that application, operation of the Order Ext. P7 will stand stayed. Government shall issue notice to the petitioners and hear them before passing orders on Ext. P9.