Karnataka High Court
J G Krishnaiah vs State Of Karnataka on 28 June, 2023
Author: R Devdas
Bench: R Devdas
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NC: 2023:KHC:22406
WP No. 7847 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO.7847 OF 2023 (CS-EL/M)
BETWEEN:
J G KRISHNAIAH
S/O LATE GULIGOWDA
AGED ABOUT 68 YEARS,
R/AT NO.194, 6TH CROSS,
5TH MAIN, D GROUP LAYOUT,
S G KAVAL, BANGALORE-560091
...PETITIONER
(BY SRI. RAMACHANDRA N., ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally DEPARTMENT OF CO OPERATION,
signed by
JUANITA 6TH FLOOR, GATE-III
THEJESWINI M S BUILDING,
Location:
HIGH DR AMBEDKAR VEEDI
COURT OF BANGALORE-560001
KARNATAKA
REP BY ITS ADDITIONAL CHIEF SECRETARY
2. THE COMMISSIONER
CO OPERATIVE ELECTION AUTHORITY,
TTMC BUILDING, 3RD FLOOR,
K H ROAD, SHANTHINAGAR
BANGALORE-560027
3. THE ELECTION OFFICER CUM
THE JOINT REGISTRAR OF CO OPERATIVE
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NC: 2023:KHC:22406
WP No. 7847 of 2023
SOCIETIES (ICDP)
OFFICE OF THE REGISTRAR OF
CO OPERATIVE SOCIETIES,
NO.1, ALI ASKAR ROAD
BANGALORE-560001
4. THE RETURNING OFFICER
OFFICE OF THE JOINT REGISTRAR OF
CO OPERATIVE SOCIETIES, ICDP
OFFICE OF THE REGISTRAR OF
CO OPERATIVE SOCIETIES,
NO.1, ALI ASKAR ROAD
BANGALORE-560001
5. VENKATARAMU
S/O LATE PAPEGOWDA
AGED ABOUT 61 YEARS,
R/AT NO.31, 2ND MAIN ROAD
IW LAYOUT, SHANKAR NAGAR
BANGALORE-560096
6. NAGINI CO OPERATIVE CREDIT
SOCIETY LTD,
NO.569, 80 FEET ROAD,
III STAGE, IV DIVISION,
BASAVESHARANAGAR
BANGALORE-560079
REP BY ITS SECRETARY/PRESIDENT
(IT IS A CO OPERATIVE SOCIETY
REGISTERED UNDER THE KARNATAKA
CO OPERATIVE SOCIETIES ACT, 1959
BEARING REG NO.42/20762/93-94)
...RESPONDENTS
(BY SMT. A.R. SHARADAMBA, AGA FOR R1, R3 & R4
SRI. T.L. KIRAN KUMAR., ADVOCATE FOR R2
SRI. BHARGAV G, ADVOCATE FOR R5
SRI. B.M. LOKESH, ADVOCATE FOR R6)
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NC: 2023:KHC:22406
WP No. 7847 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE R3 BEARING NO.RCS/UBC-1/318/2022-23
DTD.18.03.2023 VIDE ANNX-W AND ALSO LETTER BEARING NO.
207/2022-23 DTD.28.03.2023 ISSUED BY THE R6 VIDE ANNX-X TO
THE WP AND CONSEQUENTLY CONTINUE THE PETITIONER AS A
MEMBER OF THE BOARD OF MANAGEMENT OF THE R6 SOCIETY AND
ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner is aggrieved of the impugned order dated 18.03.2023 at Annexure-W passed by the Joint Registrar of Co-operative Societies, Bangalore and the impugned communication dated 28.03.2023 at Annexure-X made by the Secretary of the 6th respondent - Co-operative Society, wherein the petitioner was co-opted as a Director of the Board.
2. A vacancy was created in the Directorship of the Board of the 6th respondent - Co-operative Society on expiry of one of the Directors namely Sri M.S.Ramanna, who died on 01.03.2021. In terms of the provisions contained in Section 29E of the Karnataka Co-operative -4- NC: 2023:KHC:22406 WP No. 7847 of 2023 Societies Act, 1959, since the reminder of the term of office was more than half of the original term, the society addressed a letter dated 16.04.2021 to the 2nd respondent Election Authority for appointing a Returning Officer to conduct the election to fill up the casual vacancy. The Election Authority appointed the 3rd respondent as the Election Officer who in turn appointed the 4th respondent as the Returning Officer to conduct the election to fill up the casual vacancy. However, due to a general circular issued by the State Government noticing the difficulties created on account of the Covid-19 pandemic, the Election Authority directed that election in the Co-operative Societies in the State shall not be held for a period of six months. However, by a resolution dated 16.12.2022 passed by the 6th respondent - Society the petitioner was co-opted as a Director, to officiate as the co-opted Director of the Board in the vacancy.
3. In the meanwhile, the 5th respondent herein approached this Court in W.P.No.12747/2021 seeking a -5- NC: 2023:KHC:22406 WP No. 7847 of 2023 direction to the Registrar of Co-operative Societies to consider his representation and nominate the petitioner as the Director to fill up the casual vacancy. This Court by order dated 17.11.2021 held that where a citizen makes a representation ventilating his grievance, the jurisdictional authorities are bound to consider the same and such consideration not having not taken place at the hands of the concerned authorities, the writ petition was disposed of directing the Registrar of Co-operative Societies to consider the representation and inform the petitioner therein of the consideration of the representation within a period of four weeks. In fact it was also directed that till then the matter shall not be precipitated.
4. Since the petitioner herein was co-opted as a Director by a resolution dated 16.12.2022 inspite of a specific direction being given by this Court in W.P.No.12747/2021 dated 17.11.2021 that till the representation given by the petitioner therein was considered, the matter shall not be precipitated, -6- NC: 2023:KHC:22406 WP No. 7847 of 2023 nevertheless since the petitioner was co-opted, the 5th respondent once again made a complaint before the Joint Registrar of Co-operative Societies on 13.02.2023 venting his grievances that the petitioner herein was co-opted as a Director, contrary to the directions issued by this Court. The 5th respondent also filed a contempt petition in CCC No.185/2023 before this Court. During the course of the contempt proceedings, the Joint Registrar of Co-operative Societies considered the complaint made by the 5th respondent and passed the impugned order dated 18.03.2023 at Annexure-W. Reference is made to the orders passed by this Court in W.P.No.12747/2021. Having regard to the provisions contained in Section 29E and more particularly the 2nd proviso, the Joint Registrar directed that election shall be held to fill up the casual vacancy created in the Directorship of the Board on the death of Sri M.S.Ramanna. Following the same, the Secretary of the 6th respondent Co-operative society made the impugned communication dated 28.03.2023 bringing to the notice of the petitioner the decision of the Board to -7- NC: 2023:KHC:22406 WP No. 7847 of 2023 cancel the co-option made in favour of the petitioner, since elections are to be held to fill up the casual vacancy in terms of the directions given by the Joint Registrar of Co-operative Society.
5. At the outset, objections were raised at the hands of the 5th respondent and 6th respondent Society regarding the locus standi of the petitioner in filing this writ petition. The learned counsels submitted that the petitioner having been co-opted as a Director in terms of the 2nd proviso to Section 29E of the Act, his co-option as a Director was only a temporary arrangement to fill up the gap until the elections are held and filling up casual vacancy. That being the position, no legal right is vested in the petitioner to challenge such an action on the part of the respondent authorities in directing elections to be held to fill up the casual vacancy.
6. On the previous occasion, the matter was adjourned at the request of the learned counsel for the petitioner to enable him to answer the objections raised -8- NC: 2023:KHC:22406 WP No. 7847 of 2023 regarding the locus standi of the petitioner. Today the learned counsel for the petitioner submits that in terms of the 1st proviso to Section 29E elections could be conducted to fill up the casual vacancy only if the remaining term of the office is more than half of the original term. The learned counsel would therefore submit that since the elections could not be held, admittedly on account of several interventions including the general circular issued by the State Government followed by the instructions given by the authority and by the time the ban was lifted and elections was permitted to be conducted the reminder of the term was definitely less than half of the original term, the election should not be permitted. It is sought to be contended that the Joint Registrar of Co-op Societies could not be directed that elections should be held to fill up the casual vacancy.
7. Having heard the learned counsel for the petitioner, the learned counsel for the respondents and on perusing the petition papers, this Court is required to -9- NC: 2023:KHC:22406 WP No. 7847 of 2023 consider the preliminary objection raised at the hands of the learned counsels for respondents No.5 and 6 regarding the locus standi of the petitioner in filing this writ petition.
8. In RAVIYASHWANT BHOIR /VS./ DISTRICT COLLECTOR, RAIGAD AND OTHERS - (2012) 4 SCC 407, the Hon'ble Apex Court, while considering the question of locus standi of a complainant at whose instance action was taken against the Councilor of the Municipal Council held that the complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus sandi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e., a claim devoid of reasons. It was held that a person having a remote interest cannot be permitted to become a
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NC: 2023:KHC:22406 WP No. 7847 of 2023 party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person.
9. Following the said decision in RAVIYASHWANT BHOR (supra), the Hon'ble Apex Court in the case of AYAAUBKHAN NOORKHAN PATHAN /VS./ STATE OF MAHARASHTRA AND OTHERS - (2013) 4 SCC 465 further held that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc., in a Court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the party of the authorities. Therefore,
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NC: 2023:KHC:22406 WP No. 7847 of 2023 there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right is the foundation of the exercise of the said jurisdiction by the Court.
10. Having regard to the principles explained by the Hon'ble Apex Court, this Court finds that in the present context the co-option of the petitioner as a Director of the 6th respondent - Society was in terms of the 2nd proviso to Section 29E of the Act. The provision provides that if any vacancy in the office of members of the Board of a Co- operative Society by reason of death, resignation, removal is created, it shall be filled up in such a manner as may be specified in the bye-laws of such Society. The 2nd proviso provides further that the Board may fill up casual vacancy of the Board by nomination out of the same class of
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NC: 2023:KHC:22406 WP No. 7847 of 2023 members in respect of which the casual vacancy has arisen "till the election is held for such vacancy"
[Emphasis supplied]
10. That being the position, the co-option of the petitioner for filling the casual vacancy is only a temporary arrangement till elections were conducted to fill up the casual vacancy in accordance with law. Therefore, the co- option of the petitioner is only in terms of the provisions of law. No legal right is vested in the petitioner to seek continuation of the petitioner in the said post contrary to the provisions of law. In terms of the provisions of law as and when elections are conducted to fill up the post, the elected member will take charge in the vacancy and the petitioner has to give way. Therefore, the petitioner definitely has no legal right to contend before this Court or raise an objection that the reminder of the term being less than half of the original term, no elections should be conducted and the petitioner should be permitted to continue as the co-opted member for the remainder of the
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NC: 2023:KHC:22406 WP No. 7847 of 2023 term of the Board. In the considered opinion of this Court, the petitioner does not have any vested interest, he has no legal right to contend before this Court that elections should not be held to fill up the casual vacancy.
11. Having regard to the principles enunciated in the two decisions cited herein above, this Court is also of the considered opinion that no locus standi is available to the petitioner to maintain this writ petition.
12. Consequently, the objections raised at the hands of the learned counsel for the respondents No.5 and 6 regarding the locus standi of the petitioner is up held.
13. The writ petition is accordingly dismissed. Ordered accordingly.
Sd/-
JUDGE KLY