Karnataka High Court
Sri. R. M. Manjunath Gowda vs The State Of Karnataka on 30 June, 2023
Author: R. Devdas
Bench: R. Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
WRIT PETITON NO.11714 OF 2023 (CS-RES)
C/W
WRIT PETITON NO.11978 OF 2023 (CS-RES)
IN WP NO.11714/2023
BETWEEN
SRI. B.K. GURURAJ
AGED 52 YEARS,
S/O KARIBASAPPA,
R/A JAKKIANAKOPPA, JEENAHALLI,
SHIKARIPURA TALUK,
SHIVAMOGGA DISTRICT - 577223
...PETITIONER
(BY SRI. D.R. RAVISHANKAR, SR. COUNSEL,
FOR SRI. SHOWRI H R, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATION
VIDHANA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU - 560001
REP BY ITS PRINCIPAL SECRETARY.
2. THE ADDITIONAL REGISTRAR OF
CO-OPERATIVE SOCIETIES,
NO.1, ALI ASKAR ROAD,
BENGALURU - 560052
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3. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES
BANGALORE REGION,
BENGALURU,
NO.146, 3RD FLOOR,
8TH CROSS, MALLESHWARAM,
BENGALURU - 560003.
4. THE SHIVAMOGGA DISTRICT
CO-OPERATIVE CENTRAL BANK
HEAD OFFICE,
POST BOX NO.62,
BALARAJ URS ROAD,
SHIVAMOGGA
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER,
KARNATAKA - 577201
5. SRI. R. M. MANJUNATH GOWDA,
S/O RAMAPPA GOWDA,
AGED 65 YEARS
KARAGUCCHI GRAMA,
POST. SIRIGERE,
SHIVAMOGGA TALUK AND DISTRICT
KARNATAKA - 577211
.....RESPONDENTS
(BY SMT. A.R. SHARADAMBA, AGA FOR R1 TO R3
SRI. SUBRAMANYA R., ADVOCATE FOR
SRI. V. VINAYAKA, ADVOCATE FOR R4
SRI. JAYAKUMAR S PATIL, SR. COUNSEL FOR
SRI. MAHAMMED TAHIR.A, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING
THE COMMUNICATION DATED 25/05/2023 BEARING NO
JRI / SEC 29-C / 05/2023-24 ISSUED BY THE R3 VIDE
ANNEUXRE -A AND ETC.
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IN WP NO.11978/2023
BETWEEN
SRI. R. M. MANJUNATH GOWDA
S/O. RAMAPPA GOWDA,
AGED ABOUT 62 YEARS,
DIRECTOR,
DISTRICT CENTRAL CO-OPERATIVE
BANK SHIMOGGA,
R/O. KARAKUCCHI,
POST SHIRIGERE TALUK,
SHIMOGGA DISTRICT-577 211.
...PETITIONER
(BY SRI. JAYAKUMAR S PATIL, SR. COUNSEL FOR
SRI. MAHAMMED TAHIR.A, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATION,
VIDHANA SOUDHA,
BENGALURU-560 001,
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
NO. 1, ALI ASKAR ROAD,
BENGALURU-560 052.
3. THE ADDITIONAL REGISTRAR (CREDIT)
OF CO-OPERATIVE SOCIETIES,
NO.1, ALI ASKAR ROAD,
BENGALURU-560 052.
4. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES
BANGALORE REGION,
BENGALURU,
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MALLESWARAM, SAHAKARA SOUDHA,
MYSORE ROAD, 8TH CROSS,
MALLESHWARAM, BENGALURU-560 003.
5. THE SHIMOGGA DISTRICT CENTRAL
CO-OPERATIVE BANK LIMITED
BALRAJ URS ROAD,
SHIMOGGA-577 201,
REPRESENTED BY ITS
MANAGING DIRECTOR/CEO.
6. THE MANAGING DIRECTOR/CEO
THE SHIMOGGA DISTRICT CENTRAL
CO-OPERATIVE BANK LIMITED,
BALRAJ URS ROAD,
SHIMOGGA-577 201.
7. SRI. B. K. GURURAJ
S/O. KARI BASAPPA,
AGED ABOUT 52 YEARS,
JAKKINAKOPPA,
SHIKARIPURA TALUK,
SHIMOGGA-577 427.
....RESPONDENTS
(BY SMT. A.R. SHARADAMBA, AGA FOR R1 TO R4
SRI. SUBRAMANYA R., ADVOCATE FOR
SRI. V. VINAYAKA, ADVOCATE FOR R5 & R6
SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR
SRI. SHOWRI H.R, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH IMPUGNED ENDORSEMENT DTD 31/05/2023 AT
ANNEXURE-E ISSUED BY R-6 AND DECLARE THAT NO
RIGHT IS CREATED ON THE R-7 AS A DIRECTOR OF R-5
BANK BY VIRTUE OF RESOLUTION DTD 16/11/2021 AT
ANNEXURE-H AND COMMUNICATION DTD 26/11/2021 AT
ANNEXURE-H1, ISSUED BY R-5 BANK OR IN THE
ALTERNATIVE AND ETC.
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THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 15.06.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT
MADE THE FOLLOWING:
COMMON ORDER
Both these writ petitioners are aggrieved of certain orders touching upon the Directorship of the respondent Shivamogga District Central Co-operative Bank Limited (for short "DCC Bank"). There is claim and counter claim for the same post, at the hands of the petitioners. Therefore, these two writ petitions were clubbed, heard together and are being disposed of by this common order.
2. For the sake of convenience, Sri R.M.Manujanth Gowda, the petitioner in W.P.No.11978/2023 shall be referred to as "petitioner" and the writ petitioner in the other writ petition shall be referred to as "co-opted Director".
3. The petitioner who was a member and elected representative of the Taluk Agricultural -6- Products Marketing Co-operative Society Limited, Shivamogga (for short 'TAPMCS or Primary Society') was nominated as its representative in the respondent-Shivamogga District Co-operative Central Bank Limited (for short 'DCC Bank or Federal Society') which is a Federal Society. The petitioner was elected as a member of the Board of the DCC Bank and was thereafter elected as President of the DCC Bank. However, the petitioner was disqualified by an order dated 14.10.2020, at the hands of the Joint Registrar of Co-operative Societies. The petitioner approached this Court in W.P.No.12096/2020, but the writ petition was dismissed on the ground of maintainability, since alternative, efficacious remedy was available to the petitioner. Therefore, the petitioner filed W.A.No.1396/2021. The writ appeal too was dismissed by order dated 09.02.2023, however the -7- petitioner was directed to avail the alternative remedy.
4. Thereafter, the petitioner approached the Additional Registrar of Co-operative Societies, challenging the order of disqualification. By order dated 19.05.2023, the appeal was allowed and the order of disqualification was set aside. Following the said order dated 19.05.2023, the Joint Registrar of Co-operative Societies made a communication dated 25.05.2023 to the Managing Director of the DCC Bank, bringing to his notice the order passed by the Additional Registrar of Co-operative Societies and directed that the petitioner should be permitted to continue as a Director of the Board of DCC Bank for the remaining period. This communication dated 25.05.2023 is challenged in W.P.No.11714/2023 by Sri B.K.Gururaj, who was by then co-opted as a -8- Director to the Board of the DCC Bank, in place of the petitioner, on 16.11.2021.
5. On the other hand, the petitioner has filed W.P.No.11978/2023 challenging the endorsement dated 31.05.2023 issued by the Chief Executive Officer of the DCC Bank declining to permit the petitioner to continue as a Director of the DCC Bank.
6. Learned Senior Counsel Sri Jayakumar.S.Patil, appearing for the petitioner submits that consequent to the communication dated 25.05.2023 made by the Joint Registrar of Co- operative Societies to the Managing Director of the DCC Bank, the Board of the DCC Bank sought for legal opinion and it was found that although the order of disqualification was set aside, nevertheless the petitioner did not continue as a Director of the TAPMCS, since the term of the Board of TAPMCS had come to an end on 23.05.2021. It was opined that in -9- terms of the provisions contained in Section 18-B(i) of the Karnataka Co-Operative Societies Act, 1959 (for short the Act'), a Director of the Federal Society (DCC Bank) would cease to be a Director of the federal society if he ceases to be a Director of the Primary Co- operative Society (TAPMCS).
7. Learned Senior Counsel submits that this opinion of the Board or the Chief Executive Officer of the DCC Bank is not tenable, since the petitioner was once again re-elected as a Director of the TAPMCS on 24.02.2023, much prior to the order of disqualification being set aside on 19.05.2023. The learned Senior Counsel would therefore submit that as on the date when the order of disqualification was set aside, the petitioner continued as a Director of the TAPMCS and therefore the rigors of Section 18-B(i) did not apply to the petitioner.
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8. Insofar as the writ petition filed by the co- opted member is concerned, learned Senior Counsel submits that such co-opted member will not have locus standi to challenge or oppose the claim of the petitioner. In this regard learned Senior Counsel seeks to place reliance on Shree Chamundi Mopeds Ltd. /vs./ Church of South India Trust Association, CSI Cinod Secretariat, Madras - (1992) 3 SCC 1 and Poonam /vs./ State of Uttar Pradesh and Others - (2016) 2 SCC 779.
9. The learned Senior Counsel Sri Jayakumar S.Patil, would further point out that in terms of the provisions contained in the first proviso to Section 29-E of the Act, since the remaining term of the office of the Director in the Board was more than half of its original term, the Managing Committee of the respondent-Society made a communication dated 04.03.2021 to the Election authority to conduct -11- election to the vacant post of the Director. The Election authority passed an order dated 10.03.2021 appointing a Returning Officer to conduct the election. Calendar of events were announced on 31.03.3021 fixing the date of election as 29.05.2021. However, due to the COVID-19 pandemic, and in view of a General Circular issued by the State Government, the election could not be held. In the meanwhile, the term of the petitioner as a Director of the primary society came to an end on 23.05.2021. The learned Senior Counsel submits that the initiation of process for conducting the election was only halted in view of the General Circular issued by the State Government and therefore, immediately after the bar on holding elections was lifted by the State Government, the Returning Officer should have held the elections. It does not vest the Society or the election authority with any right or reason not to have held the election. -12- Nevertheless, since admittedly elections were not held, and immediately after the disqualification of the petitioner was set aside on 19.05.2023, since the petitioner continued as a Director of the primary society, he should be reinstated as a Director of the Board of the Society.
10. Learned Senior Counsel Sri Jayakumar S.Patil would further submit that a Division Bench of this Court, in the case of Karnataka Government Secretariat Co-operative Society Limited Vs. The State of Karnataka and Others, reported in ILR 2018 KAR 1657 has held that 'the remaining term of office of the board' referred to in the proviso to Section 29-E has to be computed from the date when the vacancy in the office of the Director of the Board occurred and not from the date of notification to fill the vacancy. Therefore, it cannot be contended by the respondents that the remaining term should be -13- construed from 19.05.2023, when the disqualification incurred by the petitioner was set aside and it cannot be contended that the remaining term is less than half of the original term.
11. When learned Senior Counsel Sri D.R.Ravishankar sought to make submissions on behalf of the co-opted Director, objections were raised at the hands of the petitioner that the co-opted Director has no locus standi to contest the matter. When this Court expressed its opinion to sustain the objections, learned Senior Counsel Sri D.R.Ravishankar, requested the Court to permit him to assist the Court only on the question of law. Learned Senior Counsel fairly submitted that he will not make submissions on behalf of the co-opted Director.
12. Learned Senior Counsel Sri D.R.Ravishankar, submitted that as per the scheme of the Act, in a -14- Federal Society, like the respondent, it shall consist of 21 members. Except a nominee of the Government, in cases of assisted societies, all other members are sent from the primary societies. From amongst the nominees sent from the primary societies, the Directors to the Federal Society are elected. Sub- section (6) of Section 29-C of the Act makes it clear that there shall be no representation of individual members on the Boards of a District Central Co- operative Bank or an Apex Co-operative Bank. This submission is made having regard to the provisions contained in clause (i) of Section 18-B of the Act. It is pointed out that the provision clearly mandates that if a Director of the primary co-operative society ceases to be a Director of such society, such person shall cease to be a Director of the secondary co-operative society or a Federal society or an Apex society. This provision operates automatically and therefore, the -15- petitioner ceased to be a Director of the primary society on 23.05.2021 and therefore, he cannot be reinstated as a Director of the Federal society, unless he is re-elected as a Director of the primary society, then sent as its nominee to the Federal society. Even otherwise, merely because he is sent as a nominee of the primary society, he cannot claim to be reinstated as a Director in the Federal society, since a nominee of the primary society is required to contest in the elections and be appointed as a Director of the Board of the Federal society.
13. Learned Senior Counsel submits that having regard to the scheme of the Act and the chronology of events, it is clear that the petitioner cannot claim to be reinstated as a Director of the Federal society. The learned Senior Counsel would also draw the attention of this Court to a decision in P.Gadeppa and Others Vs. the State of Karnataka -16- and Others, reported in 2012 SCC OnLine KAR 239, wherein it was held that the provisions contained in clause (a) of sub-section (2) of Section 21 and Section 29-C have to be read harmoniously so that effect should be given to both. It was held that in order to be a Director of a secondary society or a Federal society or an Apex society, the first condition is that he/she should be a member of the primary society. That was a case where the petitioner had ceased to be a member of the primary society, therefore, it was held that he naturally ceased to be a Director of the secondary society.
14. The learned Senior Counsel has further pointed out to sub-section (4) of Section 28-A of the Act to submit that the term of office of members of the Board is five years from the date of election and they shall be deemed to have vacated the office as members of the Board on the date of completion of -17- the said term. There being a deeming provision which operates automatically, the petitioner ceased to be a Director of the primary co-operative society as on 23.05.2021 and therefore, he was required to be re- elected as a Director of the primary society, thereafter, he could be sent as its nominee to the Federal society. Even if such process was followed, nevertheless, the petitioner could not claim to be reinstated as a Director of the Federal society. He can only come back as a nominee of the primary society in the Federal society.
15. Learned Counsel Sri R.Subramanya, appearing for the respondent-Society submitted that the petitioner has no locus standi to have filed this writ petition. It is contended that the Hon'ble Supreme Court, in Ravi Yashwant Bhoir Vs. District Collector, Raigad, (2012) 4 SCC 407, reiterated in Ayaaubkhan Noorkhan Pathan Vs. -18- State of Maharashtra and Others, (2013) 4 SCC 465 has held that it is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Court that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the action 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 petitioner that there has been a breach of statutory duty on the part of the authorities. There must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. It was held that a legal right means an entitlement arising out of legal rules. The expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a -19- person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardized. In other words, it is sought to be contended that since the petitioner had ceased to be a Director of the primary society as on 23.05.2021 and thereafter he was re-elected as Director in the primary society on 24.02.2023 only, by operation of law, even if he had not incurred any disqualification and continued as a Director in the Federal society, the petitioner would cease to continue as a Director of the Federal society from 23.05.2021. What follows is that the petitioner could not continue as a Director from 23.05.2021 and therefore, in terms of the provisions contained in the Act, the petitioner could only come back as a nominee of the primary society and even in such situation, he could not claim to have a vested right to be reinstated as a Director of the Federal society. In that view of the matter, it is submitted -20- that the petitioner has no locus to have filed this writ petition seeking reinstatement as a Director of the Federal society.
16. Heard the learned Senior Counsels Sri Jayakumar S.Patil for the petitioner, Sri D.R.Ravishankar as amicus and Sri R.Subramanya, learned Counsel for the respondent-Society and perused the petition papers.
17. There is no dispute insofar as the chronology of events are concerned. The petitioner who was a Director of the primary society (TAPCMS Board) was nominated as its representative to the respondent Federal society. The petitioner contested in the election that was conducted to the Board of the Federal society and he was further elected as the President of the Board on 17.05.2019. The term of the Board of the Federal society will expire on 05.05.2024. On 14.07.2020 the petitioner suffered an -21- order of disqualification in terms of Section 29-C of the Act. The order of disqualification was set aside on 19.05.2023. In the meanwhile, the private respondent herein was co-opted as a Director in the vacant place on 16.11.2021. Even prior to that, on 23.05.2021, the term of the petitioner as Director of the primary society came to an end. The petitioner was once again elected as a Director of the primary society on 24.02.2023. Immediately thereafter, the petitioner sought to be reinstated as a Director of the respondent Federal society.
18. As rightly submitted by the learned Senior Counsel Sri D.R.Ravishankar and learned Counsel Sri R.Subramanya, the scheme of the Act does not envisage any individual member as a Board member in the society. Sub-section (6) of Section 29-C which prescribes eligibility for being elected or appointed or continued as a member of the Board, clearly provides -22- that there shall be no representative of individual members on the Boards of the District Central Co- operative Bank or an Apex Co-operative Bank or such other classes of co-operative Banks as may be prescribed.
19. That being the position, when once the petitioner ceased to be a Director of the primary society, the rigors of the provisions contained in Section 18-B of the Act, would come into operation and the petitioner would cease to continue as a Director of the respondent Federal society, since his Directorship in the primary society came to an end on 23.05.2021, as the five years term of the Board of the primary society of which the petitioner was a Director, came to an end on that day. Therefore, even if the petitioner had continued as a Director of the respondent Federal society without the intervening order of disqualification, even then, by operation of -23- law, the petitioner would cease to continue as a Director of the respondent Federal society as on 23.05.2021. The consequences thereof would be that even if the petitioner was re-elected as a Director of the primary society, the Primary Society could only re- nominate the petitioner as its representative to the Federal society. The petitioner, under such circumstances cannot claim to be reinstated as a Director in the vacant place created by operation of law. At any rate, elections were required to be held to the vacant post of the Director. If the petitioner was re-elected and sent as the representative from the primary society, the petitioner was still required to contest in the elections to the post of the vacant Directorship. There cannot be a claim for reinstatement as Director, having regard to the express provisions contained in the three provisos to Section 29-E of the Act.
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20. For the reasons stated above, this Court is of the considered opinion that the prayer made in the writ petition W.P.No.11978/2023 to quash the impugned endorsement dated 31.05.2023 at Annexure 'E' and to declare that no right is created on respondent No.7 therein (co-opted Director) to continue as a Director of respondent No.5 Federal Society, cannot be granted.
21. The prayer made in the connected writ petition, W.P.No.11714/2023 to quash the impugned communication dated 25.05.2023 is stated to have become infructuous, in view of the subsequent developments and rejection of the request made by the petitioner herein.
22. Consequently, this Court proceeds to pass the following:
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ORDER
i) W.P.No. 11978/2023 stands dismissed.
ii) WP No.11714/2023 stands disposed of.
No order as to costs.
Pending I.As if any, stand disposed of
accordingly.
Sd/-
JUDGE
KLY/JT