Karnataka High Court
R Srinivas vs The State Of Karnataka on 15 October, 2020
Author: R Devdas
Bench: R. Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
WRIT PETITION NO.12131 OF 2019 (GM-KSR)
BETWEEN
1. R SRINIVAS
S/O P RAMAIAH
AGED ABOUT 60 YEARS
R/A NO.9, 1ST A MAIN
5TH CROSS, MARUTHI NAGAR
NAGARABHAVI MAIN ROAD
BENGALURU-560072
2. S NAGARAJ
S/O LATE SHAMAIAH
AGED ABOUT 63 YEARS
R/A NO.205/B
1ST A MAIN, BAPUJI NAGAR
MYSORE ROAD
BENGALURU-560026
3. M N JAYAKUMAR
S/O NARAYANASWAMY
AGED ABOUT 43 YEARS
R/A NO.44
MUTHUKADAHALLI
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU-562157
4. MUNISWAMY WODEYAR
S/O SHANKARAPPA WODEYAR
AGED ABOUT 50 YEARS
R/A NO.123/24
-2-
5TH CROSS, AGRAHARA LAYOUT
JAKKUR POST
YELAHANKA HOBLI
BENGALURU-560064
...PETITIONERS
(BY SRI D R RAVISHANKAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF COOPERATION
M S BUILDINGS
DR AMBEDKAR VEEDHI
BENGALURU-560001
REPRESENTED BY ITS SECRETARY
2. THE REGISTRAR OF SOCIETIES AND
DEPUTY REGISTRAR
OF COOPERATIVE SOCIETIES
BENGALURU URBAN DISTRICT
ZONE II
NO.146, SAHAKARA SOUDHA
3RD MAIN ROAD
8TH CROSS, MARGOSA ROAD
MALLESWARAM
BENGALURU-560033
3. THE ADMINISTRATOR KUMBARARA
SANGHA AND REGISTRAR OF
SOCIETIES-ZONE II
BENGALURU URBAN DISTRICT
NO.146, SAHAKARA SOUDA
3RD MAIN ROAD, 8TH CROSS
MARGOSA ROAD
MALLESWARAM
BENGALURU-560033
4. KUMARARA SANGHA(R)
NO.13 KALASIPALYAM
NEW EXTENSION
BENGALURU-560002
REPRESENTED BY ITS SECRETARY
-3-
5. SRI A C NANJAREDDY
ELECTION OFFICER
NO.13, KALASIPALYAM
NEW EXTENSION
BENGALURU-560002
6. MUNISWAMY K
S/O LATE. KRISHNAPPA
DIRECTOR OF KUMBARA SANGAH,
AGED ABOUT 50 YEARS,
R/AT: NO.2708,
7TH 'A', MAIN ROAD,
RPC LAYOUT, VIJAYA NAGAR,
2ND STAGE, BENGALURU-560 040.
7. SRI S.K. NAGARAJ
S/O KONDAPPA,
DIRECTOR OF KUMBARA SANGAH,
AGED ABOUT 51 YEARS,
R/AT: NO.288/A, 2ND FLOOR,
GURURAJA LAYOUT,
VIDYAPITA MAIN ROAD,
BANASHANKARI I STAGE,
BENGALURU-560 085.
DIRECTOR OF KUMBARA SANGAH.
8. SRI G RAMAPPA
S/O GOVINDAPPA,
DIRECTOR OF KUMBARA SANGAH,
AGED ABOUT 59 YEARS,
R/AT: NO.642,
PUTTAPPANA GUDI BEEDI,
CHANNARAYANA PATTANA ROAD,
DEVENAHALLI TOWN-562 110.
BENGALURU RURAL DISTRICT.
9. SRI S GOVIND
S/O SHRIRAMAPPA
DIRECTOR OF KUMBARA SANGAH,
AGED ABOUT 43 YEARS,
R/AT: NO.5, 12TH 'B' CROSS,
AGRAHARADASRAHALLI,
-4-
MAGADI ROAD,
BENGALURU-560 079.
10 . SMT NANDINI S
W/O SATISH,
DIRECTOR OF KUMBARA SANGAH,
R/AT: NO.115/B, 2ND CROSS,
2ND MAIN, BABUJI NAGARA,
BENGALURU-560 026.
11. SRI NAGESH N
S/O NANJUNDA SHETTY
DIRECTOR OF KUMBARA SANGAH,
AGED ABOUT 39 YEARS,
R/AT NO.15,
MALEMAHADESHWARA NILAYA,
4TH CROSS, 4TH MAIN ROAD,
BASAVESHWARA LAYOUT,
NAGASHETTIHALLI,
BENGALURU- 560094
12. SRI RAMESH
S/O RAMASHETTY
DIRECTOR OF KUMBARA SANGAH
AGED ABOUT 39 YEARS,
R/AT: NO.3, 15/1,
GANGAMMA TEMPLE ROAD,
VIDYAPITA MAIN ROAD,
BANASHANKARI 1ST STAGE,
BENGALURU- 560050.
13. SRI CHANDRA SHEKAR R
S/O RAMAIAH
DIRECTOR OF KUMBARA SANGAH
AGED ABOUT 33 YEARS,
R/AT NO.95, 7TH CROSS,
1ST MAIN ROAD,
DODDANNA LAYOUT,
ANDRAHALLI,
BENGALURU- 560091.
14. SRI SRIKANTA
S/O MADA SHETTY
-5-
DIRECTOR OF KUMBARA SANGAH
AGED ABOUT 41 YEARS,
R/AT: BEHIND SIDDAMALLAPPA
COMPLEX, AMBRUTHAHALLI
MAIN ROAD,
YELAHANKA POST,
BYATARAYANA PURA,
BENGALURU- 560092.
15. SRI K MUNIRAJU
S/O KRISHNAPPA,
DIRECTOR OF KUMBARA SANGAH
AGED ABOUT 41 YEARS,
R/AT: NO.135, KUMBARA BEEDI,
MARASANDRA,
BENGALURU NORTH TALUK,
BENGALURU - 560063.
16. SRI A SHIV KUMAR
S/O D. K AMARENDRA
DIRECTOR OF KUMBARA SANGA
AGED ABOUT 29 YEARS,
R/AT: NO.24/1, 2ND MAIN ROAD,
3RD CROSS, AZAAD NAGARA
CHAMARAJAPETE
BENGALURU - 560018.
17. SRI P MUNIRAJU @ BABU
S/O S K PILLAPPA
DIRECTOR OF KUMBARA SANGA
AGED ABOUT 36 YEARS,
R/AT: NO.230/A, 2ND MAIN ,
2ND CROSS, MARUTHI NAGAR
BABUJI NAGARA
BENGALURU 560 026.
18. SRI B N RAJU
S/O NARAYANAPPA
DIRECTOR OF KUMBARA SANGA
AGED ABOUT 50 YEARS,
R/AT: NO.26,
SHRI MUNIVENKATESHWARA
NILAYA, 4TH CROSS,
-6-
3RD MAIN ROAD, MALLESHA PALYA,
BENGALURU 560075.
19. SRI B G MAHESH
S/O D K GOPAL
DIRECTOR OF KUMBARA SANGA
AGED ABOUT 39 YEARS,
R/AT: NO.515, 5TH MAIN ROAD,
BYATARAYANAPURA,
NEW LAYOUT, AVALAHALLI,
BENGALURU- 560026.
20. SRI D NAGARAJU
S/O DASAPPA
DIRECTOR OF KUMBARA SANGA
AGED ABOUT 47 YEARS,
R/AT:No.22, NIGAMA NILAYA,
7TH MAIN ROAD,
SRICHAKRANAGARA, ANDRAHALLI,
BENGALURU - 560091.
...RESPONDENTS
(BY SRI SRIDHAR N HEGDE, HCGP FOR R1 TO R3;
SRI AMRUTHESH N P, ADVOCATE FOR R4;
SRI JAI PRAKASH REDDY M, ADVOCATE FOR R6, R8,
R10 TO R12, R16; SRI H C SHIVARAMU, ADVOCATE FOR R9,
R13, R14, R15, R17, R18, R19, R20;
SRI RAMACHANDRA R NAIK, ADVOCATE FOR R11;
R7 SERVED; NOTICE NOT ORDERED IN R/O R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
CALENDAR OF EVENTS DATED 28.01.2017 AND TO QUASH
THE ELECTION PROCEEDINGS DATED 05.03.2017
CONDUCTED BY THE R-5 AS PER ANNEXURE-A AND B.
FURTHER TO QUASH ORDER/ENDORSEMENT DATED
23.02.2019 PASSED BY THE R-2 AS PER ANNEXURE-C AND
ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 23.09.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT
MADE THE FOLLOWING:
-7-
ORDER
The lis brought before this Court was regarding the holding of election and appointment of managing committee for the 4th respondent-Kumbarara Sangha. This matter was disposed of by order dated 11.03.2020. However, the matter was taken up on appeal in W.A.No.286/2020 and by order dated 20.07.2020 the Hon'ble Division Bench has remanded the matter for considering the issue of legality and validity of the election held on 05.03.2017.
2. The chronology of events is required to be narrated in order to understand the controversy. On 19.09.2011, election was held to the Board of Directors. As per the Bye-laws of the Society, the term of the elected Board of Directors is five years. However, the State Government appointed an administrator to take care of the affairs of the Society on 17.10.2014. The appointment of the administrator was challenged by the then Directors in W.P.Nos.50210/2014 and -8- 50212/2014. This Court on noticing that no enquiry was held as contemplated under Section 27-A(c) of the Karnataka Societies Registration Act, 1960 (hereinafter referred to as 'the Act', for short) and therefore, set aside the order of appointment of administrator, by order dated 08.12.2014. Consequently, an enquiry seems to have been held. It was noticed that the previous election for the Board of Directors was held on 19.09.2011 and the five years term came to an end on 18.09.2016. Consequently, an administrator was appointed by order dated 27.01.2017, in terms of Section 27-A(1)(b) of the Act for a period of six months, to enable the administrator to hold election after setting right the irregularities found in the Society. The order of appointment of administrator was once again challenged in W.P.Nos.4975-4977/2017. An interim order dated 03.02.2017 came to be passed staying the appointment of administrator while observing that there -9- shall be interim stay subject to the administrator not already assuming the charge.
3. Learned counsel for the petitioner has taken this Court through Annexure-F, dated 01.02.2017, which is a communication made by the administrator to the Under Secretary to Government, Department of Co- operation stating that he has assumed charge as administrator of the Society on 01.02.2017, afternoon. After assuming charge, the administrator has made a communication dated 03.02.2017, to Sri.A.C.Nanja Reddy, the 5th respondent herein, who was appointed as Election Officer at the behest of the Board of Directors, bringing to his notice his appointment as administrator and cancelled the Calendar of Events dated 28.01.2017, which was announced by the Election Officer. Nevertheless, the Election Officer seems to have proceeded with the elections on 05.03.2017 and declared the list of newly elected Board of Directors on 05.03.2017, as found at Annexure-B. -10-
4. Respondents No.6 to 20 are the members who were declared as elected Board of Directors. In the meanwhile, the petitioners herein filed W.P.Nos.5633- 5635/2017 challenging the Calendar of Events announced by the 5th respondent-Election Officer. An interim order dated 07.02.2017 was passed by this Court to the effect that the election, if any, held in pursuance of the notification will remain subject to result of the writ petition. However, by order dated 01.02.2018, W.P.Nos.5633-5635/2017, W.P.No.50569/ 2016 and W.P.Nos.51778-782/2016 were disposed of as having become infructuous in view of the correctness or otherwise of the election held on 05.03.2017 was also the subject matter in W.P.Nos.57967-57970/2016 and W.P.Nos.4975-4977/2017. However, liberty was reserved to the parties to urge the contentions raised in the two writ petitions which remained for consideration.
5. Learned counsel for the petitioners submits that the statement of objections were filed by the State -11- Government in W.P.Nos.4975-77/2017 on 26.10.2017 clearly stating that the administrator was appointed on 27.01.2017; he has taken charge on 01.02.2017 and immediately thereafter the Administrator has passed an order canceling the Calendar of Events on 03.02.2017. It was also stated that even before the interim order was passed on 3.02.2017, the Administrator has taken charge on 01.02.2017 itself. It is submitted that the Administrator who was assigned the task of setting right the irregularities and holding elections, initiated proceedings under Section 25 of the Act. It is interesting to note that Sri K.Muniswamy, the 6th respondent herein and the then President of the Society had filed W.P.No.1836/2019 calling in question the resolution dated 04.10.2018 passed by the Board of Directors removing Sri K.Muniswamy from the presidentship and in his place appointing Sri S.Govinda as the President of the Society. It is noticeable that on 28.01.2019 a submission was made on behalf of the petitioner Sri -12- K.Muniswamy that an enquiry was initiated under Section 25 of the Act and the Deputy Registrar of Co- operative Societies had heard the arguments, but had not passed any orders. Therefore, it was submitted that the writ petition could be disposed of with a direction to the Deputy Registrar to pass orders on the enquiry initiated under Section 25 of the Act. This court disposed of the writ petition on 28.01.2019 recording the submission of the learned counsel for the petitioner (Sri.K.Muniswamy) directing the Deputy Registrar to pass orders on the enquiry within a period of two weeks from the date of receipt of a certified copy of the order.
6. A few days subsequently, on 01.02.2019 a memo was filed by the petitioners in W.P.Nos.4975- 4977/2017 seeking leave of the Court to withdraw the petitions. Accordingly, the writ petitions were dismissed. Immediately thereafter some of the members of the society including some of the petitioners herein wrote to the concerned Minister, Under Secretary to -13- Government, Registrar of Co-operative Society, and the Administrator bringing to their notice the turn of events and the withdrawal of W.P.Nos.4975-4977/2017 and therefore requested for holding of fresh elections. In the meanwhile, the Deputy Registrar of Co-operative Societies issued an endorsement dated 23.02.2019.
7. It would be relevant to notice that while issuing the endorsement dated 23.02.2019, the Deputy Registrar has taken into consideration the claim made by Sri.S.Mahesh, Sri. Govinda, Sri.Chandrashekar, Sri.Shivakumar as against the counter claim made by Sri.K.Muniswamy and held that the resolution dated 01.10.2018 declaring "No-confidence" against Sri.K.Muniswamy is contrary to the provisions of the Act and Bye-laws. Consequently, it was directed that the Board of Directors elected on 05.03.2017 was entitled to hold office and call for a meeting to elect a fresh Board of Directors.
-14-
8. Nevertheless, since no fresh elections were held to the Board of Directors, the petitioners have filed this writ petition to declare that the Calendar of Events dated 28.01.2017 and the elections proceedings dated 05.03.2017 are illegal and consequently, to quash the endorsement dated 23.02.2019 at Annexure-C, issued by the Deputy Registrar of Co-operative Societies.
9. Learned counsel for the petitioner submits that the Hon'ble Division Bench has noticed the contentions raised by the petitioners that the appointment of election officer was cancelled by the Administrator by order dated 03.02.2017 and therefore the elections held on 05.03.2017 is purportedly void ab inito. Secondly the Registrar of Co-operative Societies had no authority to go into genuineness of the election held on 05.03.2017 as the election was not approved by the State Government. Thirdly, election was not conduced as per the Bye-laws of the society and prior to the election there was no public notice and all the voters of the -15- society were not notified. Learned counsel for the petitioner draws the attention of this Court to Section 11 of the Act to contend that the law governing the holding of general meeting and conduct of elections for the managing committee provides that the annual general meeting is required to be held within 9 months after the expiry of each year. If the annual general meeting is not held within the stipulated time, the Registrar is empowered to extend the time, not exceeding 6 months. It is submitted that the second proviso to sub-section (2) of section 11 makes it clear that not more than eighteen months shall elapse between the date of one annual general meeting and that of the next. It is therefore submitted that unless permission is sought and given by the Registrar extending the time for holding annual general meeting, the previous managing committee cannot hold elections.
10. Per contra, Learned counsel Sri.N.P. Amruthesh, appearing for respondent No.4 Society -16- submits that the writ petition is not maintainable in view of the fact that very same prayer for declaring the Calendar of Events and elections as null and void was made by the petitioners in W.P.Nos.5633-5635/2017. The learned counsel further submits that the State Government has not placed on record any material to show that the appointment of the Administrator was extended from time to time, every six months as required under the proviso to sub-clause(c) of sub- section (1) of Section 27A of the Act.
11. Learned counsel Sri.H.C.Shivaramu, appearing for respondents No.9, 13, 14, 15, 17, 18, 19 and 20 submits that the writ petition is not maintainable as submitted by learned counsel Sri.N.P.Amruthesh.
12. Learned counsel Sri.Jaiprakash Reddy, appearing on behalf of respondents No.6, 8, 10 & 12 has filed statement of objections on 01.09.2020 raising several grounds for dismissal of the writ petition. It is -17- contended that the conduct of elections or a challenge to elections cannot be considered in a writ petition, while the aggrieved parties are required to approach the civil court. It is disputed that the Administrator took charge on 01.02.2017. It is contended that the managing committee has operated the bank accounts even after the alleged date of the Administrator assuming charge. It is contended that the elections held on 05.03.2017 was in accordance with the provisions of the Act and Bye-laws. It is contended that the State Government did not extend the term of appointment of Administrator from time to time as required under law. It is contended that the Deputy Registrar has approved the list of elected members by order of acceptance dated 26.11.2019. It is contended that when the Administrator tried to take charge on 01.02.2017, the respondents resisted and therefore the Administrator has given a false complaint to the Police. Though sufficient opportunity was given, the learned -18- counsel Sri.Jaiprakash Reddy, has not made his submissions. Therefore, this Court had no other option than to go ahead while hearing all other learned counsels and considering the objections filed by the learned counsel on behalf of respondents No.6, 8, 10 and 12.
13. Heard the learned counsels and perused the writ petition papers.
14. What is required to be decided is whether the election held on 15.03.2017 is valid or invalid. As noticed in the beginning, this petition is taken up for reconsideration on remand made by the Hon'ble Division Bench. All other submissions of the learned Counsels touching upon the maintainability of the writ petition; that the list of elected members was approved; that the appointment of Administrator was not extended etc., are not germane. As could be seen from the chronology of events, elections for the Board of Directors was held on 19.09.2011. As per the bye-laws of the -19- society, the term of office of the Board of Directors is five years. Therefore, the term of the Board of Directors installed on 19.09.2011 came to an end on 18.09.2016. Sub-Section(1) of Section 11 provides that every society registered under the Act shall hold every year a General meeting called the Annual General Meeting. The next Annual General meeting of the Society shall be held within 9 months after the expiry of each year. If, for any reason, the Annual General Meeting is not held within the stipulated period, as per the proviso to sub-section (2) of Section 11, the Registrar may, for any special reason, extend the time within which an Annual General Meeting shall be held, by a further period not exceeding 6 months.
15. No material is placed on record to show that the Registrar extended the time to conduct the Annual General Meeting after the term of the previous body came to an end on 18.09.2016. On the contrary, an Administrator came to be appointed in terms of Section -20- 27A by the State Government, by order dated 27.01.2017. Writ Petition Nos.4975-4977/2017 were filed by some of the Directors calling in question the appointment of the Administrator. An interim order dated 03.02.2017 was passed by this Court staying the appointment of the Administrator subject to the condition that the Administrator has not yet assumed charge. Material has been placed before this Court to show that the Administrator had taken charge on 01.02.2017, which is also evidenced by a communication dated 01.02.2017 at Annexure-F, made by the Administrator to the Under Secretary to Government, Department of Co-operation. The Administrator after assuming charge, communicated on 03.02.2017 to Sri. A.C.Nanja Reddy, the 5th respondent herein, who was appointed as an Election Officer at the behest of the Board of Directors, that he had assumed charge on 01.02.2017 and thereafter, cancelled the Calendar of Events which was issued by the Election -21- Officer. Despite the same, the Annual General Meeting was held and the election to the Board of Directors was held on 05.03.2017.
16. In the considered opinion of this Court, the election held on 05.03.2017 is invalid for more than one reason. Firstly, there was no order of extension passed by the Registrar permitting the previous Board to conduct the Annual General Meeting or to hold elections, in terms of the proviso to sub-section (2) of Section 11 of the Act. Secondly, the 5th respondent Election Officer could not have proceeded to hold elections since the Administrator had cancelled the Calendar of Events on 03.02.2017 and such a communication was made by the Administrator to the Election Officer. The Election Officer cannot contend that the appointment of Administrator was stayed by an order of this Court, since the communication of cancellation of the Calendar of Events was made to the Election Officer on 03.02.2017 and it was also informed -22- to the Election Officer that the Administrator had taken charge on 01.02.2017. The Election Officer should have been aware of the fact that when this Court passed the interim order of stay on 03.02.2017, it was made clear that the interim order was granted and would be operational only if the Administrator had not assumed charge already. Thirdly, after the expiry of the term of the Board, it ceases to exit and such non-existent Board cannot call for Annual General Meeting or hold elections.
17. In the opinion of this Court, all other issues including the approval of the list of elected members in terms of the election dated 05.03.2017 pales into insignificance in view of the declaration that the election dated 05.03.2017 is void ab initio. Consequently, this Court proceeds to pass the following:
-23-
ORDER
i) Writ issues to quash the election proceedings dated 05.03.2017 conducted by the 5th respondent.
ii) Consequently, the list of elected members notified on 05.03.2017 at Annexure-B, is quashed and set aside.
iii) The endorsement dated 23.02.2019 at Annexure-C, issued by the Deputy Registrar of Co-operative Societies to the extent the Board of Directors elected on 05.03.2017 were permitted to conduct the affairs of the society and hold elections, is also quashed and set aside.
iv) The Registrar shall immediately appoint an election officer to hold elections to the Board of Directors and the elections shall be held as expeditiously as possible, but not later than 25th of November, 2020.
v) The third respondent-Administrator
shall take charge of the affairs of the
respondent-Society and the Board of
-24-
Directors shall handover charge to the
Administrator forthwith. The Administrator shall take care of the affairs of the Society till the new Board of Directors is constituted in accordance with the directions issued by this Court.
It is ordered accordingly.
Sd/-
JUDGE DL/KLY