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N. Gopinathan Nair and anr. Vs. Neyyattinkara Housing Co-operative Society Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 649 of 1973
Judge
Reported inAIR1974Ker115
ActsKerala Co-operative Societies Act, 1969 - Sections 28(2) and 109(2); Kerala Co-operative Societies Rules - Rule 44(1)
AppellantN. Gopinathan Nair and anr.
RespondentNeyyattinkara Housing Co-operative Society Ltd. and anr.
Appellant Advocate Chandrasekharan and; Chandrasekhara Menon, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Excerpt:
- .....society ltd. no. t-385, elections were to be held for the vacancies of nine members in the society. nominations were invited for the same, ext p-l being the notice inviting nominations. the two petitioners tendered their nominations; but the same were rejected by the returning officer although no objections to their candidature was taken by any one else, on the ground that they are employees of other cooperative societies and therefore disqualified from seeking election under rule 44 (11 (f) of the rules framed under the co-operative societies act the petitioners seek to quash this decision of the returning officer. they have prayed for a writ of certiorari directing the 2nd respondent, namely the returning officer, to include their names in the list of valid nominations for.....
Judgment:
ORDER

V.P. Gopalan Nambiyar, J.

1. The two petitioners are members of the Neyyattinkara Housing Co-operative Society Ltd. No. T-385, Elections were to be held for the vacancies of nine members in the Society. Nominations were invited for the same, Ext P-l being the notice inviting nominations. The two petitioners tendered their nominations; but the same were rejected by the Returning Officer although no objections to their candidature was taken by any one else, on the ground that they are employees of other Cooperative Societies and therefore disqualified from seeking election under Rule 44 (11 (f) of the Rules framed under the Co-operative Societies Act The petitioners seek to quash this decision of the Returning Officer. They have prayed for a writ of certiorari directing the 2nd respondent, namely the Returning Officer, to include their names in the list of valid nominations for election, and a writ of mandamus restraining the 2nd respondent from conducting the election for the Managing Committee of the Society, without including the petitioners in the list of valid nominations,

2. Although the petitioners obtained an interim stay regarding the holding of the elections to the Managing Committee, it was stated in the counter-affidavit filed by the respondent that the election results have already been declared. In that view, accepting the statement in the counter-affidavit the application tor stay was dismissed on 14-3-1973. The counter-affidavit has disclosed that for the nine vacancies for which elections are to be held, there were, in all, fifteen nominations. Of these, the nominations of the two petitioners were rejected on the ground that they were disqualified four others withdrew. This left nine valid nominations for the nine vacancies, and an election was thus obviated, and the results were declared. The petitioners have nevertheless pressed their contentions that the 2nd respondent had no jurisdiction to reject the nominations of the petitioners and that Rule 44 (1) (f) of the Rules is ultra vires. There is difficulty in the way of the petitioners to get a declaration invalidating the rule,as the State which framed the rule has not been made a party. However. turn-Ing to the provisions of the Act and the Rules, I find no merit in the contention of the petitioners. Section 28(2) of the Act enacts that a person should be disqualified to be a member of a Committee, if he is a member of the Committee of another Society of the same type or if he is a member of the Committees of two or more Societies of a different type or types. Rule 44 (1) (f) disqualifies a person from being elected or appointed a member of the Committee of any Society, if he is a paid employee of the Society or of any other Society. What was argued was that the purview of disqualification being limited by the section only to membership of any other Society, (Section 28). the same could not be enlarged by Rule 44 so as to cover even paid employees of any Society. But theRule framing' section, namely Section 109(2) of the Act itself contains sufficient indication that the powers conferred thereby are without prejudice to the generality of the foregoing provisions. Sub-rule (xiv) of the said section authorises the framing of rules to provide for the qualifications or disqualifications for membership of a Society. Rule 44 is framed in exercise of this power, That contains further indication that it is meant to supplement the provisions of Section 28, and not in any way to detract from the same, or to run counter to the same. Sub-clause (a) (1) of Rule 44 re fers to the disqualification under Section 28: and the remaining sub-clauses deal with further heads of disqualification. Neither Section 28 nor any other section of the Act contains any indication that the disqualification contained therein is exhaustive, and cannot be added to by the Act or the Rules. I am unable to see how the rule is ultra vires. I dismiss this writ petition, but in the circumstances, without costs.


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