Karnataka High Court
B.V. Chandrashekar And Others vs Joint Registrar Of Co-Operative ... on 12 July, 1999
Equivalent citations: ILR1999KAR3645, 1999(6)KARLJ695
ORDER
1. The petitioners herein had challenged the order dated 7-7-1999 passed by the respondent 5-Karnataka Appellate Tribunal (henceforth in brief referred to as 'the KAT') in Appeal Nos. 181 of 1999, 192 of 1999 and 194 of 1999 filed by the petitioners, in passing whereof, the KAT had vacated the ex parte order granted by it staying the operation of the order dated 26-3-1999 in dispute No. JRD. MD. 17/97-98 passed by the respondent 1-Joint Registrar of Co-operative Societies, Bangalore Division, Bangalore.
2. The respondent 1-Joint Registrar of Co-operative Societies had passed the above order dated 26-3-1999 setting aside the election of the petitioners as Directors of 'Janata Bazaar', Davangere for the co-operative years 1997-98 to 1999-2000 to represent the 'C' class shareholders. The election was set aside on the main ground that the Bye-law 17(a)(iii) in the matter of election of the petitioners as Directors of the respondent 3-Janata Bazaar was not in consonance with the provisions of the Co-operative Societies Act. The petitioners' case in the instant writ petitions is mainly that the KAT would not have vacated the ex parte interim order granted in the above three appeals as the setting aside of the election was not for any corrupt practice or on moral turpitude.
3. The learned Counsel for the petitioner Sri Patil submitted that if the election of the petitioners was set aside for the reason that the provision in the bye-law of the society was not in consonance with the Act, none could find fault with the petitioners for any of the illegality that had occurred in the matter of holding the election. Therefore according to Sri Patil, the KAT instead of vacating the interim order granted ex parte, it would have granted an absolute stay of the order that was passed by the respondent 1-Joint Registrar of Co-operative Societies pending disposal of the appeal. In support of his argument, Sri Patil had also cited before me the following decisions:
1. Kirpal Singh, M.L.A. v Uttam Singh and Another.
2. Mool Chand Yadav and Another v Raza Buland Sugar Company Limited, Rampur and Others.
3. Ambala Bus Syndicate Private Limited and Others v Bala Financiers Private Limited and Others .
4. Munilakshmamma v Deputy Commissioner .
5. Madhusudan Tivari v House Rent and Accommodation Controller.
6. B.S. Mithraurinda v Deputy Commissioner, Bangalore District and Others .
7. A.V. Kandaswamy v Special Deputy Commissioner.
4. Out of the above seven decisions, I feel that the first decision in Kirpal Singh's case, supra, cited by Sri Patil has got application. In the said case, the Constitutional Bench of the Apex Court held that when the election was set aside for no fault of the candidate, the proper order that would have been granted was an absolute stay. To quote the relevant para, the same reads as hereunder:
"(A) Representation of the People Act (43 of 1951), Section 116-A -- Appeal under, by returned candidate -- Supreme Court's power to pass interim order -- Scope.
Election set aside by High Court for improper rejection of nomination paper and for no fault of returned candidate -- Appeal to Supreme Court -- Interim order by Supreme Court enabling returned candidate to attend Assembly but prohibiting him from participating in proceedings, or voting and from drawing remuneration -- Not proper as election is set aside not for his fault -- Proper order would be to grant absolute stay so that the constituency may not go unrepresented".
5. Sri Patil therefore prayed that the instant writ petition be allowed by granting the relief prayed for.
6. On the other side, the learned Counsel for the contesting respondent 3, Sri Hatti vehemently argued that when the very election of the petitioners was totally in negation of the provisions of the Act, it was just and proper for the respondent 1-Joint Registrar of Co-operative Societies to set aside the elections of the petitioners and that it is that what the said Co-operative Authority had done in passing the order dated 26-3-1999. In furtherance of his argument, he had also adverted to the order that came to be passed by the KAT now under challenge in the instant writ petition. While taking me through the same, it was also pointed out by him that the KAT had passed a just and proper order and that according to him, the same was a well considered order passed by it after hearing both the parties. He therefore submitted that the order passed by the KAT is in no way called for to be interfered with by this Court in entertaining the instant writ petition.
7. Sri Hatti had also cited before me 2 decisions. They are Ziley Singh and Others v Registrar, Cane Co-operative Societies (Cane Commissioner), Lucknow and Others and Smt. Indira Nehru Gandhi v Raj Narain. Having gone through the same, I feel it appropriate to advert to the decision, one in case of Ziley Singh supra. In the said reported case, while interfering with the order passed by the High Court granting absolute stay, the Supreme Court made the order conditional. Having gone through the said decision, I do not think that has got any application to the instant case in hand; reason being that in the said reported case, the election of the candidate was set aside by the High Court on the ground of corrupt practice, whereas in the instant case in hand, the election of the petitioners was set aside for the reason that the bye-law of the society was not in consonance with the Act.
8. Now I turn to the impugned order under challenge. In passing the impugned order, the KAT had vacated the absolute stay the petitioners were granted with, when their 3 appeals were registered by the KAT. One should not forget for a moment that even when the dispute in question was before the Joint Registrar of Co-operative Societies, the petitioners had the benefit of continuance in offices in the respondent 3-'Janata Bazaar". As pointed out by me, the petitioners' election was set aside by the respondent 1-Co-operative Authority not because of any moral turpitude or corrupt practice, but only because the bye law under which they contested the election was not in consonance with the Act.
9. In the said facts and circumstances of the case, in my considered view, the respondent 5-KAT instead of vacating the interim order of stay staying the order of the respondent 1-Joint Registrar of Co-operative Societies absolutely, it had granted at the first instance, would have continued that stay order and that the KAT would have as well hastened to dispose of the main appeal before it; such a view of mine is also supported by the above decision of the Supreme Court reported in Kirpal Singh's case, supra, aptly relied upon by the learned Counsel for the petitioners Sri Patil. Such a course, the KAT would have recoursed to, particularly when the dispute was pending before the respondent 1-Co-operative Authority for about 2 years 5 months and furthermore, the records from the respondent 1-Co-operative Authority were also received by it to deal with the appeal and further to dispose of the same finally.
10. In the said view of the matter, I pass the following:
The impugned order dated 7-7-1999 passed by the KAT hereunder challenge is quashed.
The ex parte interim order granted by the respondent 5-KAT staying the operation of the order dated 26-3-1999 passed by the respondent 1-Joint Registrar of Co-operative Societies absolutely, in Dispute No. JRD. MD. 17/97-98 stands restored to the good of these petitioners. The respondent 5-KAT is directed to dispose of the appeals of the petitioners within a period of 2 weeks from the date of receipt of this order, if necessary by having the hearing of the main appeal on day-today basis.
11. The writ petition therefore succeeds and accordingly stands allowed. No cost.
12. The Registry is directed to forward a copy of the order herein passed to the respondent 5-KAT forthwith.