Karnataka High Court
Sri S Shivanna vs The State Of Karnataka on 10 November, 2022
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WP NO. 20859 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.20859 OF 2021 (CS-RES)
BETWEEN:
1. SRI S SHIVANNA
S/O LATE SIDAIAH,
AGED ABOUT 61 YEARS,
R/AT NO.52, 3RD CROSS,
2ND MAIN, R.C.LAYOUT,
PRASHANTH NAGAR,
BAGADI (SOUTH),
MYSURU - 570026.
2. SRI R SHASHIKUMAR
S/O LATE RAMEGOWDA,
AGED ABOUT 40 YEARS,
R/AT NO.65, R.C. LAYOUT,
4TH STAGE, 2ND PHASE,
VIJAYA NAGAR,
MYSURU - 570032.
3. SRI ASHOK C
Digitally signed by
S/O LATE H.CHIKKANNA,
LAKSHMINARAYAN N
Location: High Court
AGED ABOUT 44 YEARS,
of Karnataka R/AT NO.124-SUBHAGA,
3RD MAIN, 8TH CROSS,
I BLOCK, RAMAKRISHNA NAGAR,
MYSURU-570022.
4. SRI B SHIVANNA
S/O LATE BASAVAIAH,
AGED ABOUT 55 YEARS,
PROFESSIONAL ASSISTANT SCHOOL LIBRARY,
DEMONSTRATION SCHOOL RLE,
MYSURU-570006.
...PETITIONERS
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WP NO. 20859 OF 2021
(BY SRI. PRAKASH T HEBBAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATION
M.S.BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU-560001.
REP. BY ITS PRINCIPAL SECRETARY.
2. THE DEPUTY REGISTRAR OF COOPERATIVE
SOCIETIES
MYSURU DISTRICT,
MYSURU-570001.
3. DISTRICT COOPERATIVE ELECTION
OFFICER AND JOINT REGISTRAR OF COOPERATIVE
SOCIETIES,
MYSURU DISTRICT,
MYSURU 570001.
4. RCEEHBCS (REGIONAL COLLEGE OF EDUCATION
EMPLOYEES HOUSE BUILDING CO-OPERATIVE
SOCIETY)
REGIONAL INSTITUTE OF EDUCATION,
MANASAGANGOTHRI,
MYSURU-570006.
REP. BY ITS ADMINISTRATOR.
5. DR. P TAMILSELVAN
S/O P PICHIAH
AGED 56 YEARS
TYPE 5/9
REGIONAL INSTITUTE OF EDUCATION
MANASAGANGOTHRI
MYSURU-570 006.
6. DR. R GEETHA
W/O B VENUGOPAL
AGE: 48 YEARS
TYPE III/14
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WP NO. 20859 OF 2021
REGIONAL INSTITUTE OF EDUCATION
MANASAGANGOTHRI
MYSURU-570 006.
7. MR. M SOMANNA
S/O MADE GOWDA
AGE 47 YEARS
TYPE II/7
REGIONAL INSTITUTE OF EDUCATION
MANASAGANGOTHRI
MYSURU-570 006.
8. M GANESHA
S/O MADHA
AGE 51 YEARS
TYPE II/19
REGIONAL INSTITUTE OF EDUCATION
MANASAGANGOTHRI
MYSURU-570 006.
...RESPONDENTS
(BY SRI. SUBRAMANYA R, ADDITIONAL ADVOCATE GENERAL
A/W SMT. A R SHARADAMBA, AGA FOR R1 TO R3;
SRI GIRISHA V, ADVOCATE FOR R4;
SRI SIJI MALAYIL, ADVOCATE FOR R5 TO R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDERS PASSED BY THE R-2 ON
DATED 06.11.2021 BEING IN VIOLATION OF SECTION 29-E OF
THE KARNATAKA COOPERATIVE SOCIETIES ACT, 1959 AND
ARTICLE 243-ZJ OF THE CONSTITUTION OF INDIA AT
ANNEXURE-A, A1, A2 AND A3; AND ETC.
THIS PETITION COMING ON FOR DICTATING ORDERS
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have challenged the order dated 06th November, 2021 passed by the respondent No.2 inter alia -4- WP NO. 20859 OF 2021 sought for direction to the respondent No.4-Administrator to conduct election for the vacant posts of Directors of the respondent-Society.
2. The relevant facts for adjudication of this writ petition are that, petitioners claim to be elected members of the respondent No.4-Soiciety held on 07th March, 2021. Total number of Directors are thirteen as per the bye-law of the respondent No.4-Society. For two posts, no nomination was filed and accordingly, same remained vacant. Petitioners 1 and 2 have been elected as President and Vice-President respectively of the respondent No.4-Society. It is further stated in the petition that two directors, viz. Smt. C.S. Anupama and Smt. K. Shantalakshmi, who were the Directors of the respondent-Society sought for consideration of their application for allotment of sites. However, as these two directors have owned separate residential houses and in terms of the bye-laws of the respondent No.2-Society, the claim made by these two directors was rejected. In view of the rift among the Directors of the Society, six Directors of the respondent- Society submitted their resignation on 30.09.2021. In view of the vacancy created, consequent upon the resignation -5- WP NO. 20859 OF 2021 submitted by six Directors, the Administrative affairs of the respondent No.4-Society comes to standstill and as such, the respondent No.2 has appointed an Administrator to the respondent No.4-Society to look after the day-to-day affairs of the Society. In the meanwhile, the Secretary of the Society addressed letter dated 16th October, 2021 (Annexure-F) to the respondent No.2-Deputy Registrar of Co-operative Societies, requesting for conducting election for vacancies arising out of resignation of six Directors. Pursuant to same, the respondent No.2 herein issued the impugned order produced at Annexure-A series to conduct fresh election to the respondent No.4-Society and being aggrieved by the same, the petitioners have presented this writ petition.
3. Heard Sri Prakash T. Hebbar, learned Counsel appearing for the petitioners; Sri R. Subramanya, learned Additional Advocate General for the respondent-State; Sri Girisha V, learned counsel appearing for respondent No.4; and Sri Siji Malayil learned counsel appearing for the respondents to 8.
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WP NO. 20859 OF 2021
4. Sri Prakash T. Hebbar, learned counsel appearing for the petitioners invited the attention of the Court to Clause 58 of the Bye-laws of the respondent No.4-Society (Annexure- B) and contended that since the vacancies had arisen on account of resignation of the Directors within one year from the date of election, the respondent-authorities ought to have directed the Society to conduct election for such posts which fall vacant on account of resignation of six Directors. He also referred to Section 29E of the Karnataka Co-operative Societies Act, 1959 (for brevity hereinafter referred to as "Act") and argued that the impugned order passed by the Authority directing the Special Officer to conduct re-election afresh is contrary to Act and the Bye-law of the respondent No.4- Society. He also submitted that in terms of the bye-law of the respondent No.4-Society, the period for election to the Office bearers of the Society is five years and as such, the period will end on 06th March 2026 and therefore, no fresh election would be held for the respondent-Society. In this regard, he referred to the judgment of this Court in the case of K.T. NIJALINGAPPA AND ANOTHER v. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION AND -7- WP NO. 20859 OF 2021 OTHERS reported in ILR 2014 KAR 2329 and in the case of BELTHANGADI TALUK RUBBER BELEGAR MARAT AND SAMSKARAN SAHAKAR SANGAT NIYAMIT, UJRE, D.K. AND OTHERS V. STATE OF KARNATAKA, REPRESENTED BY ITS CHIEF SECRETARY AND OTHERS reported in 2015(3) KCCR 2423 and argued that the impugned orders are liable to be quashed in view of the law settled by this Court, referred above.
5. Per contra, Sri R. Subramanya, learned Additional Advocate General, appearing on behalf of the respondent-State sought to justify the action of respondent-authorities and contended that in view of the shortfall of corum in the respondent-Society, Administrator has been appointed and therefore, consequence of succession of a Director-ship in a Society, tenure of the Executive body of the Society has come to an end and therefore, only way out is to conduct fresh election to the respondent-Society. In this regard, he relied upon the judgment of this Court in the case of H.S. MOHAN REDDY v. STATE OF KARNATAKA, DEPARTMENT OF CO- OPERATION REPRESENTED BY ITS PRINCIPAL SECRETARY AND OTHERS reported in 2022 SCC ONLINE KAR 1240. -8-
WP NO. 20859 OF 2021
6. Sri Siji Malayil, learned counsel appearing for respondents 5 to 8 submitted that the petitioners have to exhaust the alternative remedy against the order passed by the respondent-authority and further, by reiterating the averments made in the statement of objections, learned Counsel argued that Section 31 of the Act, which is a non-obstante clause, has over-riding effect on Section 29E of the Act. He places reliance on the judgment of this Court in the case of SHARANABASAPPA AND OTHERS v. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION AND OTHERS made in Writ Petition No.203490 of 2017 and connected petitions.
7. In the light of the submissions made by the learned counsel appearing for the parties, it is relevant to refer to Section 29E of the Act. The same is extracted herebelow:
"29E. 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.-9-
WP NO. 20859 OF 2021 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.
Provided also that, if the board fails to fill up such casual vacancy within three months of the date of occurrence, the Registrar shall fill up through nomination."
(underlining by me)
8. The language employed under Section 29E of the Act provides for filling up of casual vacancy in the office of Members of the Board on account of death, resignation, removal or otherwise in terms of the bye-laws of the Society. First proviso to the provision enumerates for conducting election if the remaining term of the Society is more than half of its original term; Second proviso makes it clear that the Society shall fill up such vacancy by nomination, if the remaining term of Office is less than half of the original term; third proviso indicates that upon failure on the part of the
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WP NO. 20859 OF 2021 Society to fill-up such vacancy within three months, the Registrar shall fill-up through nomination. In view of resignation of Six Directors to the respondent-Society in the present case, the existing body lost its corum and as such, Special Officer was appointed by the Registrar as per Section 31 of the Act. Section 31(5) mandates that Special Officer shall form new Managing Committee for the remaining period in terms of the bye-laws of the Society and the Act. Undisputably, elections to the respondent Society was held on 07th March, 2021 and six Directors submitted their resignation on 30th September, 2021 and in terms of Clause 58 of the Bye- laws of the Society (Annexure-B), respondent-Society shall fill- up such vacancy by conducting election to such vacancy arising out of death, removal, resignation or otherwise. As per Clause 39 of the Bye-laws of the Respondent-Society, the total term of the elected body is five years. In view of arising of vacancies on account of resignation of six Directors on 30th September, 2021 within a period of two and half years from the date election, i.e. 07th March, 2021, the only option open for the Authorities, is to direct the Society to conduct election for such vacancies that has arisen on account of resignation of six
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WP NO. 20859 OF 2021 Directors and therefore, I am of the view that in terms of Section 29E of the Act read with Clause 58 of the bye-laws of the respondent-Society, election has to be conducted in respect of vacancies that has arisen on account of resignation of six Directors, since the remaining term of office of the respondent- Society is more than half of the original term and therefore, I find force in the submission made by the learned counsel appearing for the petitioner and on this ground alone, the impugned orders passed by the respondent-Authority directing the respondent-Society to conduct fresh election to all the posts of the respondent-Society is arbitrary and contrary to Article 14 of Constitution of India and it goes against the democratic principles enshrined under the Constitution of India. In this regard, it is relevant to cite the judgment of this Court in the case of K.T. NIJALINGAPPA (supra), wherein at paragraphs 13 to 17 of the judgment, it is observed thus:
"13. Appointment of administrator was necessitated because the affairs of the 4th respondent- Society could not be managed by the elected committee as there was no quorum. The administrator was required to manage the affairs of the Committee and hold election within a period of six months to ensure that a new committee was duly constituted. That does not mean
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WP NO. 20859 OF 2021 that already elected members will lose their seats and fresh election to their posts also has to be held. This is not the effect of the provisions contained under Section 28-A or 29-A of the Act or for that matter any other provisions to which the attention of the Court is drawn.
14. Section 28-A of the Act states about the vesting of the management of a Co-operative Society in the Board and also regarding the composition of the Board and its term. Section 28-A(5) of the Act reads as under:
"(5) If the new Board is not constituted under Section 29-A on the date of expiry of the term of office of the Board or if the elections are not held within the time-limits specified in Section 39-A, the Registrar or any other officer within whose jurisdiction the Society is situated and who is authorized by the Registrar, shall be deemed to have assumed charge as Administrator and he shall, for all purposes function as such Board of management. The Administrator shall, subject to the control of the Registrar, exercise all the powers and perform all the functions of the Board of the Co-operative society or any office bearer of the co-
operative society and take all such actions as may be required, in the interest of the co-operative society:
Provided that the Registrar shall appoint an administrator to a Co-operative Society or each of the Co-operative Societies formed after amalgamation or reorganization or division in accordance with Section 14 for a period of three months and the administrator so appointed shall arrange for holding elections to a Committee of such Co-operative Society or Societies as the case may be."
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WP NO. 20859 OF 2021
15. Section 29-A which deals with the commencement of term of office of the members of the Board states as under:
"29-A Commencement of terms of office: - (1) The term of office of the members of the Board shall commence on the date on which the majority of the elected members of the Board assume office or the terms of the outgoing Board expires, whichever is later.
(2) Notwithstanding anything contained in this Act or the Rules or the bye-laws of a co-operative society, the Board shall be deemed to be duly constituted when the majority of the elected members of the Board are available to function as members of the Board after the election.
(3) The Board deemed to be constituted under Sub-Section (2) shall be competent to exercise all the powers and perform all the functions of the Board of the co-operative society."
16. A conjoint reading of these two provisions makes it clear that the Board of the Co-operative Society has got a fixed term and the term of office of the members of the Board will commence on the date on which the majority of the elected members of the Board assume office or the term of the outgoing board expires, whichever is later. If the Board is not constituted on the date of expiry of the term of office of the Board and if elections are not held within the time specified in Section 29-A, the Registrar shall be deemed to have assumed charge as Administrator and he shall discharge the functions of the Board of Management. Nowhere in these provisions it is stated that once such Administrator assumes office on account of the failure to elect majority of the members of the Board, the already elected
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WP NO. 20859 OF 2021 members will be deemed to have vacated their office. Such a consequence is not contemplated under the provisions of the Act. The same cannot be inferred nor such an inference is warranted. No such inference also can be drawn by reading these provisions. It is well established that when the words of a statute are clear, plain or unambiguous and are reasonably susceptible of only one meaning, the Courts are bound to give effect to that meaning. Useful reference can be made to the decision rendered by the Apex Court in the case of GURUDEVDATTA VKSSS MARYADIT vs. STATE OF MAHARASHTRA - AIR 2001 SC 1980 and in the case of HARSHAD S. MEHTA vs. STATE OF MAHARASHTRA - (2001) 8 SCC 257, in that regard.
17. There is no ambiguity in the language used in the aforesaid provisions. Therefore, it cannot be inferred that if majority of the members are not elected for any reason, on the Administrator assuming the charge, the other elected members shall be deemed to have vacated their office and fresh election shall be held to all the posts in the Board. For no fault on the part of the elected candidates/petitioners, they cannot be saddled with such consequence. It is also not in public interest to hold election yet again for these posts, when their election has not been in any manner cancelled or nullified. Therefore, the contention urged by the learned counsel for the petitioner deserves to be accepted."
9. Though the learned counsel appearing for the respondent-Society submitted that the petitioners have to
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WP NO. 20859 OF 2021 exhaust the alternative remedy under the Act, however, the said remedy is not an efficacious remedy to provide relief to the petitioners since the action taken by the respondent-Authorities affects the democratic rights of the elected Members of the respondent-Society.
10. It is also relevant to cite the judgment of this Court in the case of BELTHANGADY TALUK RUBBER BELEGAR MARAT AND SAMSKARN SAHAKAR SANGAT NIYAMIT, UJRE (supra), wherein this Court at paragraphs 11, 12, 17 and 18 of the judgment, has observed thus:
"11. The object of Part IXB of the Constitution, which is inserted by the Constitution (Ninety-Seventh Amendment) Act, 2011 which came into force on 15th February 2012, is to provide for autonomous functioning, democratic member-control and uninterrupted professional management of Co-operative Societies by the body elected to administer the Society without any interference by the State or any other agency.
12. The purpose and object of Article 243ZK of the Constitution is to ensure continuity of management by the Board. For this purpose, holding of election to the Board before expiry of the term of the existing Board is made mandatory under Article 243ZK. This is evident on a plain reading of the Article. This is to ensure that the newly
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WP NO. 20859 OF 2021 elected members of the Board will assume office W.P.No.9274/2015 immediately on expiry of the term of the outgoing Board without giving scope for any other body to interfere in the management of the Society. 13 to 16 xxx xxx xxx
17. The contention that continuance of the existing Board is violative of clause (2) of Article 243ZJ of the Constitution cannot be accepted on the facts of the case. In my opinion, a conjoint reading of the three Articles namely, 243ZJ, 243ZK & 243ZL will show that the term of the Board is five years from the date the members of the Board assume office. However, if the State law does not conform to Article 243ZK of the Constitution and does not provide for holding of election before expiry of the term of the Board, the term of the existing Board shall have to be continued till the newly elected Board assumes office. Any view to the contrary will defeat the purpose and object of Part IXB of the Constitution. This Court is duty bound to uphold the W.P.No.9274/2015 provisions of the Constitution. I may add that Article 243ZL(1)(v) will not come into play in the absence of State law conforming to Article 243ZK of the Constitution.
18. As the provisions of the State Act do not conform to Article 243ZK of the Constitution, inasmuch as they do not actually provide for holding of elections to the Boards of Secondary, Federal & Apex Societies, before expiry of the term of the existing Boards, the existing
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WP NO. 20859 OF 2021 Boards shall have to be continued, till the newly elected Boards assume office."
11. In view of the declaration of law by the Hon'ble Apex Court and this Court referred to above, I have carefully considered the judgment referred to by learned counsel for respondent in the case of MOHAN REDDY and in the case of SHARANABASPPA (supra). However, the same cannot be made applicable to the facts of present case. It is to be noted here that elections were held to the respondent-Society on 07th March, 2021, and there are thirteen office bearers to the respondent-Society. Six of them have resigned before the completion of half of the term of the existing Body and in view of Sections 28-A and 29-E of the Act read with clause 58 of the bye-laws of the respondent-Society (Annexure-B), elections have to be conducted only for the six vacancies arising on account of the resignation submitted by six Directors of the Society. In that view of the matter, I pass the following:
ORDER
i) Writ petition is allowed;
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WP NO. 20859 OF 2021
ii) Order dated 06.11.2021 produced at Annexure-A, A1, A2 and A3 passed by the respondent No.2 herein are quashed;
iii) Respondent No.4 Society is directed to conduct election for the vacancies created on account of resignation of six Directors and two vacant posts already existing in the respondent No.4- Society, and to declare the results by following the provisions contained under the Act.
SD/-
JUDGE LNN List No.: 1 Sl No.: 18