ABDUL RASHEED Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was elected to the Board of Directors of a Co-operative Bank. The election was in June, 1984. Admittedly, he was a defaulter to a Society as on that date. (The fact that he was only a surety or that the default related to a comparatively small sum would not detract from his being a defaulter). The liability was discharged ultimately on 25-7-1985. Under Ext. P. 1 dated 16-11-1985, the 2nd respondent directed the petitioner to show cause against the disqualification on various grounds including his being a defaulter at the time of election. The fact that at the time of election he was a defaulter aad consequently disabled to continue as a member had been clearly indicated in that communication. The reply of the petitioner on that aspect was that his default was a past one and that Rule 44 (1) (c) of the Co-operative Societies Act would not get attracted to such a case. The discharge of liability on 25-7-1985 was relied on to show that he did not continue to be a defaulter at the time when proceedings for election had been initiated. This contention of the petitioner did not appeal either to the Joint Registrar or to the Government which dismissed his revision petition challenging the adverse order passed by Joint Registrar. Both these orders are now in challenge in this writ petition.

(2.) In the light of the facts stated above, there could not be any doubt that at the time of the election the petitioner was a defaulter. He was, therefore, ineligible for being elected to the Committee (or Board of Directors as it is sometimes termed) in view of the positive prohibition contained in Rule 44 (1) (c). If he is initially ineligible to be a member of the Committee, his election would bs ab initio void. And if his membership itself is a still-born child, post natal care cannot breathe life into it. The case is to be distinguished from a situation governed by Rule 44 (2). That situation, to carry the earlier analogy further, relates to a well-born child suffering from fatal 'default attack' subsequent to the election. Curative devices may sometimes be available in such a situation. The situation is totally and fundamentally different to the extent it is governed by rule 44 (1).

(3.) Counsel naturally, and to some extent justifiably, sought to rely on the observations of the decision of a Division Bench of this Court in Thommen Itticheriyanthu v. State of Kerala, [1978 KLT 887], In particular, reliance was placed on the sentence reading :