STATE OF KERALA Vs. M PAVITHRAN

JUDGEMENT

(1.) The short question in the appeal is whether R.37(4) of the Kerala Cooperative Societies Rules, 1969 is beyond the rule making power of the Government under S.109 of the Kerala Cooperative Societies Act, 1969. R.37(4) reads:

(2.) The preamble to the Cooperative Societies Act says that the legislation is to provide "for the orderly development of the cooperative movement in the State of Kerala in accordance with the relevant directive principles of State policy enunciated in the Constitution of India". And S.28 of the Act provides for the appointment of the managing committee. The impugned rule provides for the nomination of two members by the Registrar to the managing committee. S.27 in Chap.4 relating to the management of Cooperative Societies provides in sub-s.(1) thereof that, subject to the provisions of the Act, the rules and the bye laws, the final authority of a Society vests in the general body of its members. This provision makes it clear that the final authority is vested in the general body of the members of the Society, of course, subject to the provisions of the Act, the rules and the bye laws. S.28(1) enacts that the general body of a Society shall constitute a committee in accordance with the bye laws: and the second proviso to this sub-section provides that, where the bye laws so provide, the Government or the Registrar may nominate all or any of the members of the committee for such period as may be specified in the bye laws. This indicates that nomination may be possible by the Registrar or the Government if the bye laws so provide. Then comes S.31 relating to the power of the Government to nominate their representatives on the committee. Sub clause (1) provides that, in the four cases mentioned therein as (a) to (d), the Government or any authority specified by the Government shall have the right to nominate to the committee not more than three persons or a third of the total number of members of the committee of the Society, whichever is less. It may be instructive to note sub-s.(3) of the section, which lays down that a person nominated to the committee under the foregoing power shall not take part in the discussion of any no confidence motion or vote on any such motion. In other words, the power of the nominees of the Government under this section is restricted: we may also reiterate that the Government can nominate under this section only if one of the conditions mentioned in clauses (a) to (d) in sub-s.(1) exists. No other provision in the Act has been brought to our notice by the Government Pleader, which indicates that any other mode of nomination to the managing committee is contemplated by the Act. The question is whether, in those circumstances, nomination to the managing committee can be provided by a rule claiming that the rule is for carrying out the purposes of the Act. We may point out that, clauses i to xxxviii in sub-s.(2), which are by way of illustration, do not indicate that nomination to the managing committee is a matter to be provided by rules, nor does the residuary clause xxxviii indicate so. (We wish to make it clear that the general power under sub-s.(1) is not to be controlled by the enumerated powers in sub-s.(2): still, it must be remembered that the enumerated powers must illustrate and help in understanding the scope of the power in sub-s.(1): of course, the scope must depend upon the purposes of the Act.) As rightly pointed out by the Single Judge, from the provisions of the Act and also from its preamble, we are not able to see that one of the purposes of the Act was to give representation to appropriate interests in the managing committee as contemplated by R.37(4). The purpose of the Act is the orderly development of the cooperative movement; and nomination to the managing committee should be confined within the limits prescribed by the Act. Therefore, the Single Judge is right in his conclusion that the impugned rule is beyond the rule making power under S.109 of the Act to carry out the purposes of the Act.