Karnataka High Court
The Prathamika Krushi Pattina Sahakara ... vs The Assistant Registrar on 1 March, 2024
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NC: 2024:KHC-D:4740
WP No. 101051 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MRS JUSTICE M.G.UMA
WRIT PETITION NO.101051/2024(CS-RES)
BETWEEN:
THE PRATHAMIKA KRUSHI PATTINA
SAHAKARA SANGHA NIYAMIT,
NINGAPUR, TALUK: MUDHOL,
DIST: BAGALKOT - 587 313,
REPRESENTED BY CHIEF EXECUTIVE OFFICER.
...PETITIONER
(BY SRI SRINIVAS B. NAIK, ADVOCATE)
AND:
1. THE ASSISTANT REGISTRAR
OF CO- OPERATIVE SOCIETIES,
SUB DIVISION, JAMKHANDI,
DIST: BAGALKOT-587313.
2. DOONDAPPA VENKAPPA HUREDDY,
AGE: ABOUT 50 YEARS, OCC: AGRICULTURE,
R/O: NINGAPUR VILLAGE,
TALUKA: MUDHOL,
Digitally
signed by
DIST: BAGALKOT-587313.
MANJANNA E
Location:
High Court of 3. THE PRATHAMIKA KRUSHI
Karnataka
PATTINA SAHAKARA SANGHA,
NIYAMIT HALAKI TALUK: MUDHOL,
DIST: BAGLKOT - 587 313, REPRESENTED BY
CHIEF EXECUTIVE OFFICER.
...RESPONDENTS
(BY SRI HANAMANTHRAY LAGALI, AGA FOR R1;
SRI RAJASHEKAR B. HALLI, ADVOCATE FOR R2;
NOTICE TO R3 IS DISPENSED WITH)
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NC: 2024:KHC-D:4740
WP No. 101051 of 2024
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED
11/01/2024 PASSED BY THE 1ST RESPONDENT BEARING NO.
MR-8/U.NI.AMENDMENT/NI R/CR-185/2023-24/1241 PRODUCED AT
ANNEXURE-F, IN THE ENDS OF JUSTICE AND EQUITY
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner-Prathamika Krushi Pattina Sahakara Sangha Niyamit, Ningapur, Mudhol taluk, represented by its Chief Executive Officer seeking grant of writ in the nature of certiorari to quash the order dated 11.01.2024 passed by respondent No.1, produced as per Annexure F.
2. Learned counsel for the petitioner contended that respondent No.2 is the member of the petitioner- Society, he complained respondent No.1 and demanded for amendment of byelaws of petitioner to restrict its area of operation only to Ningapura village. Learned counsel submitted that petitioner-Society was registered in the year 2011 and it had the area of operation in three villages viz., Lingapur, Halki and Bomanabudni villages. Later in the year 2015, respondent No.3 was registered, -3- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 which is a similar Co-operative Society having area of operation at Halki and Bomanabudni villages. Therefore, respondent No.2-the member of the society submitted a representation to respondent No.1 to restrict the area of operation of the petitioner. The said representation is as per Annexure-F. Acting on the Annexure-F, respondent No.1 issued the notice as per Annexure-D dated 11.10.2023, calling upon the petitioner-society to amend its byelaws restricting its area of operation only to Ningapur village.
3. Petitioner has submitted the reply to Annexure- D as per Annexure-E, requesting to have the very same byelaws without any amendment and without restricting its area of operation to any one village. It is thereafter respondent No.1 passed the order Annexure-F dated 11.01.2024 restricting its operation only to Ningapur village, which is called in question before this Court.
4. Learned counsel contended that the impugned order as per Annexure-F is passed under Section 12(5) -4- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 and (6) of the Co-operative Societies Act, 1959 ("the Act, 1959" for short). As per Section 12(6), respondent No.1 should have given an opportunity of being heard to the petitioner. No such opportunity was given to the petitioner and the impugned order came to be passed without following the principles of natural justice. Therefore, the same is liable to be set aside.
5. Learned counsel further submitted that since the byelaws, which is presently in operation is not in contravention of any Acts or Rules, respondent No.1 could not have invoked Section 12(5) of the Act, 1959. In that view of the matter also, the impugned order suffers from illegality. Therefore, he prays for allowing the petition.
6. Learned counsel for the petitioner placed reliance on the decision of the Co-ordinate Bench of this Court in the case of Sri Samaja Seva Sahakari Bank Niyamit Banwal Vs. The Deputy Registrar of Co-Op Societies, D.K1 to contend that this Court has already 1 ILR 2003 Karnataka 3240 -5- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 held that while acting under Section 12(5) and (6) of the Act, 1959, reasonable opportunity of being heard is to be provided to the parties and if such opportunity of being heard is not provided, the order passed suffers from illegality and the same is liable to be set aside.
7. He has also placed reliance on the decision of this Court in W.P.No.104197/2021 disposed on 13.12.2021 in support of his contention that there is no bar on the number of co operative societies that can be registered where the society could operate in any given area subject to the protection of its financial viability by the Registrar of the Co-operative Societies. But its operation cannot be restricted to a particular place or village, which is not in the spirit of the Act under which the Co-operative Societies are being established. Therefore, learned counsel submits that, Annexure-F passed by respondent No.1 is without jurisdiction and it is illegal.
8. Learned counsel for the petitioner submits that Section 70 is not applicable to the facts of the case in view -6- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 of Section 70(2) of the Act, 1959, where it has explained the meaning of 'disputes touching the constitution, management or the business of the Co-operative Society', according to which the dispute of the present nature was not at all referred to. Therefore, this Court has jurisdiction to entertain the petition. Accordingly, prays for allowing the petition in the interest of justice.
9. Per contra, learned counsel for respondent No.2 opposing the petition submitted that respondent No.2 is the employee of petitioner-Society. During 2012 petitioner-Society was formed. It was carrying on business in three villages. Subsequently respondent No.3 was formed specifically to carry on business at Halki and Bomanabudni villages. Therefore, the petitioner was requested to restrict its operation only to Ningapur village and the same was not heeded to. Therefore, the order as per Annexure-F came to be passed.
10. Learned counsel submitted that the petition itself is not maintainable in view of the efficacious remedy -7- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 available to the petitioner to challenge the order. Learned counsel contended that in view of Section 70(1)(c) and
(d), the petitioner is required to approach the Registrar of Co-operative Societies for decision. He further submits that since the order impugned is passed under Section 12 of the Act, an appeal under Section 106 of the Act should have been filed. The petitioner has directly approached this Court and therefore, the writ petition is not maintainable.
11. He placed reliance on the decision of the Co- ordinate Bench of this Court in WP.No.41676/2014 and WP.No.21818/2019 in support of his contention that in such an event this Court has consistently dismissed the writ petition directing the parties to approach the Registrar of the Co operative Societies for decision.
12. Learned counsel submits that against the order passed by the learned single judge in WP.No.21818/2019, Writ Appeal in W.A.No.1432/2019 was preferred. But the same was came to be dismissed by the Division Bench -8- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 vide order dated 23.05.2019. Thus, the position of law is very well settled. As the dispute is between two societies or between society and its members, necessarily it is to be referred to be referred to the Registrar for decision. Hence, prays for dismissal of the writ petition as not maintainable.
13. Learned High Court Government Pleader for respondent No.1-State supporting the contention taken by respondent No.2 contended that the petition is not maintainable and the same is liable to be dismissed as not maintainable.
14. Learned counsel for petitioner in reply submits that the decisions relied on by the learned counsel for respondent No.2 of this Court in WP.No.1432/2019, WP.No.1433/2019, WP.No.1434/2019 and WP.No.1435/ 2019 are relating either to election matter or service matter. Both of which are covered under Section 72(2) of the Act, 1959. But in the present case, it is not the case. Therefore, the same are not applicable. However the -9- NC: 2024:KHC-D:4740 WP No. 101051 of 2024 learned counsel placing reliance on Godrej Sara Lee Ltd., Vs. Excise and Taxation Officer-cum Assessing Authority and others2 contended that even when an alternative remedy is available, the writ jurisdiction can be invoked to prevent abuse of process of law. Hence prays for allowing the petition as the same is maintainable before this Court.
15. Perused the materials on record.
16. Primary objection raised by the learned counsel for respondent Nos.1 and 2 is with regard to maintainability of the petition before this Court when an efficacious remedy of preferring an appeal under Section 106 of the Act, 1959 is available for the petitioner.
17. Learned counsel for the petitioner contended that, since principles of natural justice is not followed while passing the order as required under Section 12(6) of the Act, 1959, this Court can exercise jurisdiction, invoking Article 226 of the Constitution of India. 2 2023 SCC OnLine SC 95
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NC: 2024:KHC-D:4740 WP No. 101051 of 2024
18. The Hon'ble Apex Court in the case of Godrej Sara Lee Ltd., (supra) placing reliance on its earlier decision in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai3 highlighted exceptions and justification for maintaining or entertaining the writ petitions despite a party approaching it without availing alternative remedy provided by the statute. The same is extracted which reads as under:
1) Where the writ petition seeks enforcement of any of the fundamental rights;
2) Where there is violation of principles of natural justice;
3) Where the order of the proceedings are wholly without jurisdiction; or
4) Where the virus of an Act is challenged.
19. Therefore it is the settled proposition of law that when any of these four grounds are made out, the writ Court can exercise its jurisdiction under Article 226, even though the petitioner has not exhausted the alternative or efficacious remedy available under the statute. 3 (1998) 8 SCC 1
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NC: 2024:KHC-D:4740 WP No. 101051 of 2024
20. According to the learned counsel for the petitioner, before passing the impugned order as per Annexure-F, the petitioner was not given an opportunity of being heard as required under Section 12(6) of the Act, 1959 and thereby principles of natural justice is denied to the petitioner.
21. The materials placed before the Court discloses that, initially the Assistant Registrar of Co-Operative Societies ("the ARCS" for short) issued notice to the petitioner on 15.09.2023 as per Annexure-A requesting it to consider the amendment of its byelaws. After receipt of this Annexure-A, the petitioner-Society passed a resolution as per Annexure-B on 25.09.2023 asserting that, the Society will operate in all the three villages as provided under its original byelaws. Passing of such resolution, was communicated to the ARCS as per letter dated 21.10.2023 produced as per Annexure-C, wherein it is made clear that since the members of the Society are willing to continue with the petitioner-Society as it is, the resolution was passed and therefore requested to continue the area of
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NC: 2024:KHC-D:4740 WP No. 101051 of 2024 operation as it was in original byelaws. Thereafter the ARCS again issued the notice as per Annexure-D under Section 12(5) of the Act, 1959, highlighting that no action was taken to amend the byelaws and drawing the attention of the petitioner that necessary orders as required under Section 12(6) will be passed, if they failed to comply with the directions. Again the reply as per Annexure-E was issued refusing to carryout any amendment and again requesting to permit it to carry on its business as per the byelaws. It is only thereafter, the impugned order dated 11.01.2024 as per Annexure-F came to be passed restricting the area of operation of the petitioner only to Ningapur village and this order was under Section 12(6) of the Act, 1959, which is called in question before this Court.
22. When the ARCS had issued Annexures-A & D before passing the impugned order as per Annexure-F and received the reply as per Annexure-C and E, the contention of the petitioner that no reasonable opportunity of being heard was provided and there is violation of
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NC: 2024:KHC-D:4740 WP No. 101051 of 2024 principles of natural justice cannot be accepted. When no grounds as highlighted in Whirlpool Corporation (supra) is made out, there is absolutely no reason for this Court to exercise its jurisdiction under Article 226 of the Constitution of India. The contention of the learned counsel for the petitioner that before passing the impugned order, the petitioner should have called upon once again to provide an opportunity of being heard, cannot be accepted.
23. In view of the above, I decline to exercise the jurisdiction to entertain the petition which is filed bypassing Section 106 of the Act, 1959, where filing of appeal is provided against the order passed under Section 12 of the Act, 1959. If this Court proceeds to exercise jurisdiction even when an alternative or efficacious remedy is available to the parties under the statute, the appeal provision provided under Section 106 of the Act, would become redundant. I am of the opinion that the petitioner will have to file an appeal under Section 106 of the Act,
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NC: 2024:KHC-D:4740 WP No. 101051 of 2024 1959, if it is adviced to do so. Hence, the petition is liable to be dismissed as not maintainable.
24. Accordingly, the writ petition is dismissed as not maintainable.
SD/-
JUDGE EM/CT-ASC List No.: 1 Sl No.: 21