Karnataka High Court
Mahabaleshwar S/O Ramachandra Hegde, vs The Totagars Co-Operative Sale Society on 13 February, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
WRIT APPEAL No.100019/2018 (APMC)
BETWEEN:
1. MAHABALESHWAR
S/O. RAMACHANDRA HEGDE,
AGED 61 YEARS, OCC: AGRICULTURE,
R/O: BHAIRUMBHE, TQ. SIRSI (U.K.)
2. GANAPATI S/O. SUBRAY HEGDE,
AGED 60 YEARS, OCC: AGRICULTURE,
R/O: KANGOD, TQ. SIRSI (U.K.)
3. GANAPATI S/O. RAMACHANDRA HEGDE,
AGED 45 YEARS, OCC: AGRICULTURE,
R/O: BELLEKERI, TQ. SIRSI (U.K.)
4. HULGOL SERVICE CO-OPERATIVE SOCIETY,
BHAIRUMBHE,
BHAIRUMBHE, TQ. SIRSI (U.K.),
REP. BY IT'S CHIEF EXECUTIVE.
5. KANGOD GROUP VIVIDOSHESHAGALA
SAHAKARI SANGH LTD. YADALLI,
YADALLI, TQ. SIRSI, (U.K.),
REP. BY IT'S CHIEF EXECUTIVE. ... APPELLANTS
(BY SRI ANANT HEGDE, ADVOCATE)
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AND:
1. THE TOTAGARS CO-OPERATIVE SALE SOCIETY,
SIRSI, UTTARA KANNADA DISTRICT,
REP. BY ITS GENERAL MANAGER,
SHRI. RAVISH ACHUT HEGDE,
AGED 50 YEARS, GENERAL MANAGER,
THE TOTAGARS CO-OPERATIVE
SALE SOCIETY, SIRSI,
UTTARA KANNADA DISTRICT.
2. AGRICULTURAL PRODUCE MARKETING COMMITTEE,
BENGALURU, REP. BY ITS DIRECTOR,
NO.16, 2ND, RAJ BHAVAN ROAD,
BENGALURU.
3. THE DIRECTOR,
AGRICULTURAL PRODUCE MARKETING COMMITTEE,
BENGALURU,
NO.16, 2ND, RAJ BHAVAN ROAD,
BENGALURU.
4. DEPUTY COMMISSIONER,
DIST: UTTARA KANNADA,
KARWAR.
5. TAHASHILDAR SIRSI AND
VOTERS REGISTERING AUTHORITY,
AGRICULTURAL PRODUCE MARKETING COMMITTEE,
SIRSI, UTTARA KANNADA DISTRICT.
6. AGRICULTURAL PRODUCE MARKETING COMMITTEE,
SIRSI, UTTARA KANNADA DISTRICT,
REP. BY ITS SECRETARY.
... RESPONDENTS
(BY SRI A.P. HEGDE JANMANE, ADVOCATE &
SRI VIJAY MALALI, ADVOCATE FOR R-1
SMT. VEENA HEGDE, AGA FOR R-2 TO R-5
SRI M.C. BASAREDDY, ADVOCATE FOR R-6)
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THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON'BLE COURT TO, SET
ASIDE THE ORDER DATED:10.01.2018 PASSED IN WRIT
PETITION NO.100906/2017 (APMC-BL) SO FAR AS REMANDING
THE MATTER TO 1ST RESPONDENT, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this writ appeal is listed to consider I.A.No.4/2018 which is an application for early hearing, we have heard learned counsel for the appellants and learned counsel for respondent No.1 and learned Additional Government Advocate for respondent No.2 to 5 at length.
2. We have perused the material on record.
3. The first respondent herein had preferred W.P.No.100906/2017 before this Court assailing the correctness of order dated 04.01.2017 passed by the Tahasildar, Sirsi and Voters Registering Authority, Agricultural Produce Marketing Committee, Uttara Kannada District, and had sought certain incidental and ancillary reliefs. By order dated 10.01.2018, learned Single Judge 4 has relegated the writ petitioner as well as other parties before the appellate authority directing the appellate authority to consider the case of the writ petitioner and dispose off the same expeditiously and all contentions of the respective parties were left open.
4. Learned counsel for the appellants contended that for the purpose of constitution of the second and subsequent marketing committees, in terms of the Karnataka Agricultural Produce Marketing Committee (Regulation and Development) Act, 1966, (hereinafter referred to as the 'Act' for short), one member shall be a representative of the Co-operative Marketing Societies, carrying on business in notified agricultural produce, within the market area, who is not disqualified under Section 16, elected by the committee of management of the said societies. That the controversy in the instant case arises with regard to the voters list pertaining to the above constituency. According to learned counsel for the appellants, Rule 5 of the Karnataka Agricultural Produce 5 Marketing (Regulation and Development) Rules, 1968 (hereinafter referred to as the Rules), applies and therefore, under the said Rules, the objection raised to the voters list being belated could not have been entertained at all by the Tahasildar. Second contention raised in that regard is that the objection was not in the requisite format.
5. That the Tahasildar by impugned order dated 04.01.2017 (Annexure-E to the writ petition) rightly rejected the objections filed by the writ petitioner. If the writ petitioner was aggrieved by the said order, then an appeal had to be filed within the prescribed period of limitation, instead the writ petition was filed and this Court has relegated the matter to the appellate authority which is beyond the period of limitation prescribed for filing an appeal. Therefore, this appeal has been filed which may be allowed.
6. Per contra, learned counsel for the respondent No.1/writ petitioner drew our attention to Rule 5-C (3) of 6 the Rules to contend that the provisions of Rule 5-A applies mutatis mutandis in relation to the list of names of members of the managing committee of each of the societies referred to in sub section (1) of Section 11. That the respondent No.1/Society is a Marketing Society. Therefore, the provisions relating to agriculturists constituency do not apply as such. That having regard to clause (c) of sub Rule (2) of Rule 5-A, no amendment or deletion of any entry can be made under sub Rule (1) and no direction for the inclusion of a name in the voters list of a constituency can be given under the said sub Rule after the last date for making nominations for an election in that constituency and before the completion of that election. That in the instant case, according to the writ petitioner, out of 15 societies in Sirsi, 147 persons are there who claim to be eligible to vote but according to the writ petitioner, only Directors of two societies are eligible to vote. Therefore, the inclusion of the names of other Directors was assailed. That though the writ petitioner did not avail the alternative remedy of an appeal pursuant to 7 the order of the Tahasildar and writ petition was filed, nevertheless learned Single Judge of this Court relegated petitioner to the appellate authority. Therefore, the appellants herein can have no grievance on that ground. Ultimately, the appellate authority will decide the merits of the dispute and hence there is no merit in this writ appeal.
7. By way of reply, learned counsel for the appellants contended that when there is no provision for condonation of delay in filing the appeal under sub Rule (4)(a) of Rule 5-A of the Rules, this Court could not have exercised discretion directing appearance before the appellate authority so as to consider the grievance of the writ petitioner as an appeal.
8. Learned Additional Government Advocate submitted that the order of the learned Single Judge is just and proper and would not call for any interference in this appeal.
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9. The detailed narration of facts and contentions would not call for a reiteration. We find that learned single Judge in para 13 of the order has relegated the writ petitioner to the appellate authority under Rule 5(16) of the Rules but in our view, the relevant Rule is, Rule 5-A (4)(a) of the Rules having regard to Rule 5-C of the Rules which is applicable to Marketing Societies. The writ petitioner being a Marketing Society had to file an appeal before the appellate authority within the period of limitation which is fifteen days from the date of the order appealed. Instead of availing the alternate remedy, writ petitioner has approached this Court. Although the contentions of the respective parties have been discussed at length, ultimately, learned Single Judge in exercise of discretion under Article 226 of Constitution, has relegated the writ petitioner to the appellate authority. All contentions of both the sides have been left open. We find that if the learned Single Judge had not exercised the said discretion, the petitioner would have been left with no remedy.
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10. It may also be the contention of appellants' counsel that the writ petitioner ought to have availed the alternative remedy. Merely because the petitioner did not avail the alternate remedy and instead availed a constitutional remedy under Article 226 of the Constitution, while exercising jurisdiction under that Article, learned Single Judge has relegated the matter ultimately to the appellate authority. This is because learned Single Judge has impliedly noted that the period of limitation in filing the appeal would not come in the way of availing the remedy by way of appeal to the writ petitioner. It is also observed that after relegating the matter to the appellate authority, learned Single Judge has been cautious in stating "rest of the contentions of the parties are left open" which would obviously not include the contention regarding limitation and filing of the appeal. This is because learned Single Judge has exercised discretion so as to enable the appellate authority to hear the matter as an appeal. We do not find any error in the 10 approach of the learned Single Judge in relegating the writ petitioner before the appellate authority. We find no merit in the appeal. The appeal is hence dismissed.
11. It is stated at the Bar that the appellate authority has already commenced its hearing pursuant to the direction of the learned Single Judge. The said authority shall conclude the hearing expeditiously and in accordance with law.
12. Interim order granted by this Court is recalled.
13. In view of the disposal of the appeal, I.A.No.4/2018 stands disposed.
Sd/-
JUDGE Sd/-
JUDGE Naa