KAMALA Vs. DAIRY EXTENSION OFFICER

JUDGEMENT

(1.) Appellants (petitioners) filed O.P.8623 of 1995 to quash Ext. P-2 order passed by the Returning Officer appointed for conducting the election to the Board of Directors of the 2nd respondent Cooperative Society. The Returning Officer rejected the nomination on the ground that the appellants are not entitled to contest in the election in view of Clause.21(1)(i) of the Bye laws of the Society. As per the said clause, a member of the committee is not entitled to contest in the election without previous sanction of the Deputy Registrar of Cooperative Societies if he was a member of the committee for two consecutive terms. Admittedly the appellants have already completed two consecutive terms in the committee of the Society when they submitted nomination paper for the election. Appellants contended that rejection of the nomination is illegal and therefore first respondent should be directed to accept the nomination submitted by them without obtaining previous sanction from the Deputy Registrar. The learned Single Judge dismissed the Original Petition holding that rejection of the nomination of the appellants is justified and does not warrant interference.

(2.) R.44(1)(m) of Cooperative Societies Rules disqualified a member of the Society to contest for election as a member of the Committee if he had been a member of the Committee for two consecutive terms (whether for the full term of each Committee or only for part of the terms of both or any one of them) and a period of two years has not elapsed from the date of expiry of the latter of such term, unless he obtains previous exemption from the Registrar to stand for election. This clause has been omitted by S.R.O. 16/81 published in the Kerala Gazette No. 1 dated 6-1-1981. Appellants contended that Clause.21(1)(i) of the Bye laws of the Society being contrary to the provisions in the Cooperative Societies Rules cannot be relied on for rejecting the nomination submitted by them.

(3.) R.44 deals with disqualification of membership of the Committee of the Society. The disqualifications mentioned in R.44 cannot be taken as exhaustive as there can be other disqualifications which are outside the purview of the Rule. They can certainly be incorporated lawfully in the bye laws of particular societies depending upon situations in which they are placed. Merely because R.44(1)(m) has been deleted it does not follow that a society is bound to fall in line by making suitable amendments in its bye laws. There may be instances where peculiar features of particular societies require special qualifications or disqualifications for membership of the managing committee. These can be worked out only in bye laws. As this is the prime concern of the society it is for the society to have its own bye laws. R.5 only lays down that bye laws of a society should not be contrary to the provisions of the Act and Rules. It empowers the society to deal with all or any of the matters particularly specified. As it would not be possible for the Government to provide for all possible contingencies or to meet all possible situations in framing rules, bye laws which are not contrary to the Act and Rules cannot be ignored on the ground that a particular Rule which contained similar provision as in a bye law has been deleted. The argument of the appellants that Clause.21(1)(i) of the Bye laws of the Society which was in conformity with the R.44(1)(m) of the Rules has become ultra-vires of the rules and hence it cannot be given effect to cannot be accepted. Undoubtedly Clause.21(1)(i) embodies the provisions of R.44(1)(m). There is no legal bar to the 2nd respondent Society in retaining the provisions in Clause.21(1)(i) of the Bye laws even though R.4491)(m) has been omitted by notification. That being the position, Clause.21(1)(i) of the Bye laws cannot just be ignored.