Karnataka High Court
Shivakumargouda Shidlingagouda Patil vs The State Of Karnataka on 14 December, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.148667/2020 (CS-ELE)
BETWEEN:
SHIVAKUMARGOUDA SHIDDLINGAGOUDA PATIL,
AGE: 50 YEARS, OCC: AGRICULTURE & DIRECTOR,
R/O KALAKERI, VILLAGE, TQ.MUNDARAGI,
DIST: GADAG.
.. PETITIONER
(BY SRI.JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR
SRI. JAGADISH PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA,
REP.BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION,
M.S.BUILDING, DR.AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE CHIEF EXEUCTIVE OFFICER,
KARNATAKA STATE CO-OPERATIVE APEX BANK LTD.,
No.1 "UTHUNGA" PAMPA MAHAKAVI ROAD,
CHAMARAJPET, BENGALURU-560 018.
3. THE REGIONAL COMMISSIONER/
DISTRICT ELECTION COMMISSIONER,
BENGALURU DIVISION,
KARNATAKA STATE CO-OPERATIVE APEX BANK LTD.,
No.1 "UTHUNGA" PAMPA MAHAKAVI ROAD,
CHAMARAJPET, BENGALURU-560 018.
4. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA CENTRAL CO-OPERATIVE BANK LTD.,
2
DHARWAD, POST BOX No.21,
SUBHAS ROAD, DHARWAD-01.
5. THE PRESIDENT/MANAGING DIRECTOR,
KARNATAKA CENTRAL CO-OPERATIVE BANK LTD.,
DHARWAD, POST BOX No.21,
SUBHAS ROAD, DHARWAD-01.
6. LINGARAJ S/O SADASHIVAPPA CHAPPARADALLI,
AGE: 60 YEARS, OCC: AGRICULTURE & DIRECTOR
R/O INGALAGUNDI, TQ.HIREKERURU,
DIST: HAVERI.
.. RESPONDENTS
(BY SRI.F.V.PATIL & SRI.MAHESH WODEYAR, ,ADV. FOR C/R6,
SRI.VINAYAK S.KULKARNI, AGA FOR R1)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE IMPUGNED MINUTES/PROCEEDINGS OF
THE BOARD MEETING DATED 05.12.2020 VIDE ANNEXURE-J AND THE
RESOLUTION PASSED THERE UNDER VIDE ANNEXURE-K DATED
05.12.2020 UNDER RESOLUTION No.1.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is assailing the proceedings of Board of Meeting dated 05.12.2020 vide Annexure-J and resolution passed there under vide Annnexure-K dated 05.12.2020 under Resolution No.1 in this writ petition. 3
2. Brief facts of the case of the petitioner is that, on 28.10.2018 elections were held to the post of Directors of respondent No.5-KCC Bank Ltd., Dharwad. The petitioner was elected as a Director in the said election. That on 22.02.2019 a Board Meeting was called for co- opting one of the Directors of respondent No.4 as a nominee for remaining period in respondent No.2-Apex Bank. In the said meeting it was resolved to nominate the petitioner as a /nominee of respondent No.4 to respondent No.2-Apex Bank vide Resolution No.7 and also resolved to continue after the expiry of term of members of respondent No.2-Apex Bank as a nominee of respondent No.4 for further period. The said resolution was forwarded to respondent No.2-Apex Bank.
3. Respondent No.2 issued a notice to respondent No.4 to nominate any of its Director as a nominee to respondent No.2-Apex Bank vide letter dated 12.11.2020. The petitioner and other Directors apprehending that 4 respondent No.4 may delegate other Director without following procedure as contemplated under the Karnataka Co-operative Societies, Act, 1959 (hereinafter referred to as 'the Act' for short) submitted a representation to respondent Nos.4 and 5. Respondent No.4 without considering the representation of the petitioner and other Directors issued a notice calling for the Board of Meeting scheduled to be held on 05.12.2020 to elect one of its Directors as a nominee to respondent No.2-Apex Bank. That on 05.12.2020 a Board of Meeting was held and it was resolved to appoint respondent No.6 as a nominee of respondent No.4 to respondent No.2-Apex Bank. The petitioner aggrieved by the resolution dated 05.12.2020 vide Annexures-J and K filed this writ petition.
4. Respondent No.6 filed statement of objections stating that the petitioner was sent as a nominee of respondent No.4 vide resolution dated 22.02.2019. The term of the petitioner as a nominee of respondent No.4 in 5 respondent No.2-Apex Bank was till expiry of elected term of respondent No.2-Apex Bank, i.e., from 2015-16 to 2019-20. The petitioner has no right to continue as a nominee of respondent No.2-Apex Bank after expiry of term of members of respondent No2-Apex Bank. Respondent No.2-Apex Bank took a decision that the petitioner as a nominee was accepted till the expiry of term of respondent No.2-Apex Bank i.e., 2015 to 2020 and the same was intimated to respondent No.4 by letter dated 02.04.2019. The elected body of the respondent No.2-Apex Bank does not have the power to extend the period of nominee beyond 2020. Hence, he prays to dismiss the writ petition.
5. Heard learned senior counsel Sri.Jaykumar S.Patil appearing for Sri.Jagadish Patil for the petitioner, learned Additional Government Advocate and learned counsel Sri.F.V.Patil appearing for respondent No.6. 6
6. Learned senior counsel appearing for the petitioner submits that the petitioner was appointed as a nominee of respondent No.4 to respondent No.2-Apex Bank as per Clause (a) of sub-section 2 of Section 21 of the Act. He further submits that once the Board has sent a nominee to other Co-operative Society where it is a member, if the Board wants to change the nominee, it has to be done by passing a resolution with substantial reasons in a Board of Meeting by 2/3rd majority of the members present and voting in such meeting. In the present case, no such substantial reasons are assigned and also 2/3rd majority of the members. He further submits that resolution is in contravention of sub-section 3 of Section 21 of the Act. Hence, he prays to allow the writ petition.
7. Per contra, learned counsel appearing for respondent No.6 submits that, the petitioner was nominated for the remaining term which expired in the month of August, 2020. So the petitioner has no right to 7 continue as a nominee of respondent No.4 in respondent No.2-Apex Bank. He further submits that there was no vacancy after expiry of terms of the office of the respondent No2-Apex Bank. He submits that respondent No.2-Apex Bank vide letter dated 02.04.2019 has intimated respondent No.4 that period of the petitioner as a nominee of respondent No.4 is only for the remaining period. He submits that the petitioner has not challenged the letter dated 02.04.2019. He submits that provision of sub-section 3 of Section 21 of the Act applies only in case of change of nominee but in the present case there is no change of nominee. He further submits that respondent No.6 has been appointed as nominee of respondent No.4 and a resolution is passed and the same has been communicated to respondent Nos.2 and 3. Hence, he prays to dismiss the writ petition.
8. Perused the records and also submissions made by the learned counsel for the parties.
8
9. That the election to the member of Board of respondent No.4 was held on 10.11.2013 for a period of five years, i.e., from 2013 to 2018. In the said election, one Pratap A.Chavan was elected as a Director of respondent No.4. Respondent No.4 passed a resolution to send Pratap A.Chavan as a delegate/nominee of respondent No.4 to respondent No.2-Apex Bank for a period of five years. The term of member of respondent No.4 is five years from the date of election as per sub- section 4 of Section 28-A of the Act. The said term came to an end on 09.11.2018. Thereafter, elections were held to the members of Board of respondent No.4 on 28.10.2018. In the said election, Pratap A.Chavan was defeated and he ceased to be a nominee of respondent No.2-Apex Bank. The Pratap A.Chavan was disqualified to continue as member of respondent No.2-Apex Bank as per Section 29- C of the Act. In view of disqualification, the office of member of respondent No.2-Apex Bank fell vacant. In 9 order to fill up casual vacancy in the office of member of respondent No.2-Apex Bank, Section 29-E provides filling up of casual vacancies in the office of Board. It is necessary to consider Section 29-E of the Act. The same is extracted hereunder:
"29-E. Filling up of casual vacancy in the office of members of the Board.- Any vacancy in the office of members of the board of a co-operative society by reason of death, resignation, removal or otherwise, shall be filled up in such manner as may be specified in the bye-laws of such society:
Provided that the co-operative election commission shall conduct the election to fill up any vacancy in the office of the director of the board if the remaining term of office of the board is more than half of its original term.
Provided further that the board may fill up a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the remaining term of office of the board is less than half of its original term."10
10. Section 29-E provides filling up of a casual vacancy in the office of Board by reason of death, resignation or otherwise shall be filled up in the manner specified in the bye-laws. Proviso to Section 29-E provides that the Election Commission shall conduct an election to fill up a vacancy in the office of Director of the Board, if remaining term of office of the Board is more than half of its original term. If it is less than half of its original term, the Board may fill up a vacancy on the Board by nomination. In the present case, it was less than half of the original term. Respondent No.4 has sent a proposal for co- opting the petitioner as a nominee of respondent No.4 for remaining period as per the resolution on 22.02.2019 and it was also resolved that the petitioner would continue to be a nominee for further period. In order to consider submission, it is necessary to consider the said resolution and the same is extracted hereunder:
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11. Respondent No.2-Apex Court co-opted the petitioner as nominee of respondent No.4 only for the remaining period as per Section 29-E of the Act and did not consider to continue him as a nominee of respondent No.4 12 for further period and the same was communicated to respondent No.4 as per letter dated 02.04.2019 vide Annexure-R1. The relevant portion of the letter is extracted hereunder:
"F ªÉÄïÁÌt¹zÀ «µÀAiÀÄ ºÁUÀÆ G¯ÉèÃRPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ¢£ÁAPÀ 27.03.2019 gÀAzÀÄ £ÀqÉzÀ ¨ÁåAQ£À DqÀ½vÀ ªÀÄAqÀ½ ¸À¨sÉAiÀÄ ¤tðAiÀÄzÀAvÉ, PÀ.gÁ.¸À. C¥ÉPïì ¨ÁåAQ£À DqÀ½vÀ ªÀÄAqÀ½UÉ PÀ£ÁðlPÀ ¸ÉAlæ¯ï PÉÆÃ- D¥ÀgÉÃnªï ¨ÁåAPï °., zsÁgÀªÁqÀ, EzÀgÀ ¥Àæw¤¢üAiÀiÁV ¤zÉÃð±ÀPÀgÁVzÀÝ ²æà ¥ÀævÁ¥ï CdÄð£ÀgÁªï ZÀªÁít, EªÀgÀ ¤UÀðªÀÄ£À¢AzÀ vÉgÀªÁzÀ ¸ÁÜ£ÀPÉÌ PÉ.¹.¹. ¨ÁåAQ£À ¥Àæw¤¢üAiÀÄ£ÀÄß C¥ÉPïì ¨ÁåAQ£À ¤zÉÃð±ÀPÀgÁV G½zÀ CªÀ¢Uü É PÉÆÃ-D¥ïÖ ªÀiÁrPÉƼÀî®Ä ¨ÁåAQ£À ªÀiÁ£Àå CzsÀåPÀëjUÉ ¤ÃqÀ¯ÁVgÀÄvÀÛzÉ."
12. The petitioner did not challenge the letter dated 02.04.2019 for not considering him as a nominee for further period as per the resolution dated 22.02.2019 passed by respondent No.4. From the perusal of resolution dated 22.02.2019, respondent No.4 passed a resolution to continue the petitioner as a nominee of respondent No.4, 22 months before the expiry of original term of respondent No.2-Apex Bank. Hence, the petitioner has no right to continue as nominee of respondent No.4 after the expiry of original term of office of respondent No.2-Apex Bank as per Annexure-R1. Respondent No.4 has not sent a fresh 13 proposal after expiry of original term of member of respondent No.2-Apex Bank appointing the petitioner as a nominee of respondent No.4.
13. That on 12.11.2020 respondent No.2-Apex Bank issued a notice under sub-rule 6 of Rule 13-D of Karnataka Co-operative Societies Rules, 1960 calling upon respondent No.4 to send the name of its Director as nominee to respondent No.2-Apex Bank. On receipt of notice, the petitioner and other Directors submitted a representation to respondent Nos.4 and 5 to continue him as a nominee of respondent No.4 in respondent No.2-Apex Bank. Respondent No.4 called a Board of Meeting on 05.12.2020. In the said meeting, it is resolved to appoint respondent No.6 as a nominee of respondent No.4 to the respondent No.2-Apex Bank. The petitioner has not challenged the decision of respondent No.2-Apex Bank in not considering the request for continuing the petitioner as a nominee, i.e., Annexure-R1. The act of the respondent No.2-Apex Bank in 14 not considering the request for continuing the petitioner as a nominee of respondent No.4 and issuing a letter dated 12.11.2020 amounts to deemed rejection. The passing of impugned resolution appointing respondent No.6 as a nominee does not amount to change nominee. Respondent No.2-Apex Bank accepted the resolution dated 22.02.2019 and permitted the petitioner to continue as a nominee even after the expiry of original term of member of respondent No.2-Apex Bank, then the impugned resolution would be in-contravention of sub-section 3 of Section 21 of the Act. At the cost of repetition, in the present case, respondent No.2-Apex Bank did not considered the request for continuing the petitioner as a nominee after expiry of original term. In view of deemed rejection, respondent No.4 passed a resolution afresh appointing respondent No.6 as a nominee of respondent No.4 to respondent No.2- Apex Bank. Hence, sub-section 3 of Section 21 of the Act is not applicable to the present case in hand. 15
14. Hence, the contention of the petitioner that impugned resolution is contrary to sub-section 3 of Section 21 of the Act cannot be accepted for the aforesaid reasons. I do not find any illegality in the impugned resolution appointing respondent No.6 as a nominee of respondent No.4 to respondent No.2-Apex Bank.
15. On the basis of the impugned resolution, the name of respondent No.6 is included in the voters list on 10.12.2020. Copy of the voters list and copy of calendar of events dated 10.12.2020 are produced by respondent No.6. Pursuant to the calendar of events, respondent No.6 has submitted his nomination papers on 12.12.2020. The Returning Officer has issued an acknowledgement for having received the nomination papers from respondent No.6. The election is set in motion.
16. In catena of decisions, the Hon'ble Apex Court and this Court have held that, once if the calendar of 16 events is issued, the courts cannot interfere in the election process, in view of Article 243-O of the Constitution of India, which reads as under:
"243-O Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
17. In view of above discussion, at this stage, it is not appropriate for this Court to interfere in writ jurisdiction. I do not find any ground to interfere with the impugned resolutions dated 05.12.2020 vide Annexures-J and K. Accordingly, the writ petition is dismissed.
Sd/-
JUDGE MBS/-