IN THE HIGH COURT OF KERALA AT ERNAKULAM The Hon'ble MR. Justice P.N.RAVINDRAN --------------------------- W.P.(C) No. 38571 OF 2010 (V) -------------------------- Dated this the 3rd day of January, 2011 1. M.STEPHEN, ... Petitioner Vs 1. THE STATE CO-OPERATIVE ELECTION ... Respondent 2. THE JOINT REGISTRAR OF CO-OPERATIVE 3. PONVILA AGRICULTURAL IMPROVEMENT For Petitioner :SRI.B.S.SWATHY KUMAR For Respondent : No Appearance J U D G M E N T The petitioner is a member of the third respondent society. In this writ petition, the petitioner challenges the reservation of constituencies in favour of members having a fixed deposit of Rs.10,000/- and above and also the reservation of three seats in favour of women candidates. The petitioner contends that the bye laws of the third respondent society do not provide for reservation of seats in favour of members having a fixed deposit of Rs.10,000/- and above and that the bye laws provide for reservation of only 1 seat each for members belonging to the scheduled castes/ scheduled tribes and women. The main contention raised by the petitioner is that unless the bye laws are amended to make it confirm to the amendment introduced by Act 7 of 2010, a copy of which is on record as Ext.P2, the amended provisions cannot be relied on in the ensuing elections. 2. Section 28 (1C) of the Kerala Co-Operative Societies Act introduced by Kerala Act 7 of 2010 provides for reservation of one .seat in the committee of each Primary Credit Society or Urban Co- operative Bank for members having a deposit of Rs.10,000/- and above. Section 28A which provides for reservation of one seat each for members belonging to the scheduled castes/scheduled tribes and women was also amended raising the number of seats to be reserved for women candidates to three. Kerala Act 7 of 2010 came into force on 28th April 2010 when it was published in the Kerala Gazette. A learned single Judge of this Court has in Azeeskutty v. Returning Officer (2008 (4) KLT 165) held that the bye laws cannot override the provisions of the statute and that the statutory provisions will operate with full force and effect notwithstanding the fact the bye laws have not been amended. The learned single Judge was considering the effect of section 28A which was introduced in the statute with effect from 1.1.2000 to provide for reservation of seats in favour of members belonging to the scheduled castes/scheduled tribes and also for women. The learned single Judge held that notwithstanding the failure of the society to amend the bye laws to make it confirm to section 28A of the Act as amended, the amendment will operate and that the reservation of seats in favour of women members was in order. 3. The issue raised by the petitioner is in my opinion covered against him by the decision of the learned single Judge in Azeeskutty v. Returning Officer (supra). The learned counsel appearing for the petitioner however relied on the decision of a learned single Judge in Janardhanan v. State Co-operative Election Commisison (2009 (1) KLT 1032). I am of the opinion that the principles laid down in the said decision have no application to the case on hand. In Janardhanan v. State Co-operative Election Commisison (supra) the learned single Judge was considering the power of the committee of a society to delimit the wards in the absence of stipulation in that regard in the bye laws. It was held that as the bye laws do not empower the committee of the society to delimit the wards on geographical basis, the delimitation exercised could have been carried out only by the general body. In the instant case, the contention raised by the petitioner is that unless the bye laws are amended to confirm to section 28(1C) of the Act, the amendment cannot operate. That issue is no longer res-integra in view of the decision of this Court in Azeeskutty v. Returning Officer(supra). The learned counsel for the petitioner also raised a contention that the third respondent society is not a primary credit society so as to attract the applicability of section 28(1C) of the Act and that it is a primary agricultural credit society. The term "primary agricultural credit society" is defined in section 2(oa) of the Kerala Co-Operative Societies Act to mean a service co-operative society, a service co-operative bank, a farmers service co-operative bank and a rural bank, the principal object of which is to undertake agricultural credit activities and has its area of operation confined to a Village, Panchayat or a Municipality. 4. Section 2(ob) of the Act defines the term Primary Credit Society to mean a society other than an apex or central society which has as its principal object, the raising of funds to be lent to its members. Ext.P1 bye laws of the third respondent society make it evident that the society has been established with the principal object of raising funds to be lent to its members. Further the area of operation of the third respondent society is spread over to two Panchayats. As per the definition of the term "primary agricultural credit society" in section 2(oa) of the Act, the third respondent society cannot be said to be a primary agricultural credit society for the reason that its area of operation is not confined to a Panchayat but to different portions of two Panchayats. Further, under rule 15 of the .Kerala Co-operative Societies Rules, agricultural improvement societies are classified as a primary credit societies. I am therefore not persuaded to agree with the learned counsel for the petitioner that the third respondent society is not a primary credit society. I over rule the said contention also. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed in limine. P.N.RAVINDRAN, (JUDGE) vps |