1. This is an appeal against the Judgment of Subba Rao J. on a petition under Article 226 of the Constitution by the appellant before us for the issue of a writ of certiorari calling for the records relating to the order of the Deputy Registrar of Co-operative Societies, Chepauk, Madras, dated 15-4-1952 and to quash the said order. The appellant was elected director of the Triplicane Urban Co-operative Society Ltd., in or about February 1951. On 24-1-1952, the Deputy Registrar of Co-operative Societies addressed a letter to the President of the society stating that it had bean brought to his notice that the appellant was a near relation of a clerk or inspector of the society namely one V. R. Rajagopala Aiyar and that under Rule 27 (1) (e) and Rule 27 (2) (e) of the rules framed under the Madras Co-operative Societies Act, he had ceased to hold office, and called upon the president to arrange to get another person elected in place of the appellant.
There was correspondence consequent on this communication from the Deputy Registrar, and eventually on 26-3-1953, the Deputy Registrar passed proceedings requesting the appellant to show cause why he should not be removed from the board of directors on the ground that he was a near relation of a paid employee, under Rule 37 (1) (e) of the rules. In reply to these proceedings, the appellant submitted that though it was true that Rajagopala Aiyar was related to him as his wife's sister's husband, he had been an employee of the society for over 25 years and that as the election had been held long ago, the said rule would not apply to his case. The Deputy Registrar, however, passed an order on 15-4-1952 holding that the appellant 'will cease to be a director of the Triplicane Urban Cooperative Society.' The basis of this order, to quote his own words, is as follows:
'Thus at the time of election he was disqualified under Rule 27 (1) (e) for membership in the committee. As Sri V.R. Rajagopalan and the director Sri M.D. Krishnamurthi are husbands of sisters, they are considered near relations as per list of near relations given under Rule 27 of the rules. Sri M. D. Krishnamurthi is disqualified to be a director under Rule 27 (1) (e) of the rules on account of his being a near relation of a paid employee.'
2. It is to quash this order that the appellant filed the petition under Article 226 of the Constitution. The learned Judge, Subba Rao J. dismissed the application. Hence this appeal.
3. It is not necessary for us to deal with the several points which appear to have been raised before Subba Rao J. and are dealt with by him as we are clearly of opinion that the appeal should be allowed and the appellant granted the relief sought by him, on a short ground. Rule 27 (1) (e) in so far as it is material runs as follows :
'No person shall be eligible for appointment as a member of the committee of any society, if he (e) is a near relation of a paid employee of the society, provided that if any question arises whether the person is or is not a near relation of a paid employee of the society the question shall be referred to the Registrar, for decision';
4. To understand the scope of this provision, it is useful to refer to Sub-rule (2) (e) of this rule, which runs as follows :
'A member of the committee of any society shall cease to hold (his) office as such, if he becomes a near relation of a paid employee of the society.'
It is common ground that on the date on which the appellant was elected director, that is in February 1951, Rajagopala Aiyar was an employee of the Society. It is obvious, therefore, that Rule (2) could have no application. If authority were needed for the interpretation of the term 'becomes' in Rule 2(e), we need only refer to the decision of the Supreme Court of India in -- 'Election Commission, India v. Saka Venkatarao', : 4SCR1144 (A) dealing with a similar provision contained in Art, 190(3) of the Constitution. The learned Chief justice of India observed,
'Not only do the words 'becomes subject' in Article 190(3) and 'has become subject' in Art, 192(1) indicate 'a change in the position' of the member 'after' he was elected, but the provision that his seat is to become 'thereupon' vacant, that is to say, the seat which the member was filling theretofore becomes vacant on becoming disqualified, further reinforces the view that the Article contemplates only a sitting member, incurring the disability while so sitting.'
As the relationship existed even at the time of the election of the appellant, it cannot be said that the appellant 'becomes a near relation of a paid employee of the society'. It follows that the Deputy Registrar had no power to declare that the appellant had ceased to be a director of the society.
5. There are provisions both in the rules framed under the Act as well as in the rules framed by the society itself which indicate the procedure for setting aside an election 'inter alia' on the ground that the person elected was under any one of the disqualifications set out in Rule 28(1). It is not suggested that there was any proceeding in accordance with such procedure. Indeed, the election had taken place long before the proceedings started.
6. The order of the Deputy Registrar passed on 15-4-1952 was without jurisdiction and it must be, and is hereby quashed. No order as to costs here and before Subba Rao J.