Karnataka High Court
Sri. Y L Devegowda vs The State Of Karnataka on 6 September, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.P. NOs.25630/2019 & 27096-27100/2019 &
27104/2019(CS-RES)
BETWEEN:
1. SRI. Y.L. DEVEGOWDA
S/O LATE Y.K. LINGEGOWDA
AGED ABOUT 72 YEARS
R/O YALIYURU VILLAGE AND POST
MANDYA TALUK AND DISTRICT.
(PETITIONER IN W.P.NO.25630/2019)
2. SRI. N. JAYARAMU
S/O EREGOWDA
AGED ABOUT 66 YEARS
R/O MADEKOPPALU VILLAGE
DODDABYADARANAHALLI POST
MANDYA TALUK AND DISTRICT.
3. SRI. M.K. DEVEGOWDA
S/O KALEGOWDA
AGED ABOUT 63 YEARS
R/O MAYANNANAKOPPALUY
VILLAGE, YALIYURU POST
MANDYA TALUK AND DISTRICT.
4. SRI. T. HANUMANTHU
S/O DEVEGOWDA @ THIMMAIAH
AGED ABOUT 64 YEARS
R/O YALIYURU VILLAGE AND POST
MANDYA TALUK AND DISTRICT.
5. SRI. SHANTHAIAH
S/O BORAIAH
AGED ABOUT 56 YEARS
2
R/O THUBINAKERE VILLAGE
YALECHAKANAHALLI POST
MANDYA TALUK & DISTRICT.
6. SRI. K. DEVARAJU
S/O KEMPEGOWDA
AGED ABOUT 52 YEARS
R/O URAMARA KASALAGERE
VILLAGE, KALENAHALLI POST
MANDYA TALUK & DISTRICT.
(PETITIONERS IN W.P.NOs.27096-27100/2019)
7. SRI. KALEGOWDA
S/O CHOWDI KENCHEGOWDA
AGED ABOUT 63 YEARS
R/O YALECHAKANAHALLI
VILLAGE AND POST
MANDYA TALUK AND DISTRICT.
(PETITIONER IN W.P.NO.27104/2019)
(BY SRI. M.R. RAJAGOPAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
DEPARTMENT OF CO-OPERATION
VIKASA SOUDHA
BENGALURU - 560 001.
2. THE CO-OPERATIVE ELECTION
COMMISSIONER
3RD FLOOR, TTMC 'A' BLOCK
K.H. ROAD, SHANTHINAGARA
BENGALURU - 560 027.
3. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIEITIES
MANDYA DISTRICT
MANDYA - 571 401.
4. THE DISTRICT ELECTION OFFICER
FOR CO-OPERATIVE SOCIETIES
3
MANDYA DISTRICT
MANDYA - 571 401.
5. THE RETURNING OFFICER
APPOINTED TO CONDUCT THE
ELECTION TO ELECT THE
PRESIDENT OF THE PRIMARY
AGRICULTURAL CREDIT CO-OPERATIVE
SOCIETY LIMITED, YALIYURU VILLAGE
MANDYA TALUK AND DISTRICT - 571 401.
6. THE CHIEF EXECUTIVE OFFICER
PRIMARY AGRICULTURAL CREDIT
CO-OPERATIVE SOCIETY LIMITED.,
YALIYURU VILLAGE, MANDYA
TALUK AND DISTRICT - 571 401.
7. THE DISTRICT CENTRAL CO-OPERATIVE
BANK, BY ITS MANAGING DIRECTOR
MANDYA DISTRICT, MANDYA - 571 401.
8. THE SUPERVISOR
KASABA CIRCLE
DISTRICT CENTRAL CO-OPERATIVE
BANK, MANDYA DISTRICT
MANDYA - 571 401.
... COMMON RESPONDENTS
(BY SRI. SUBRAMANYA, AAG A/W
SMT. KAVITHA H.C, HCGP FOR R-1, R-3 AND R-5;
SRI. G.V. SHASHIKUMAR, ADVOCATE FOR R-2 AND R-4;
SRI. T.P. VIVEKANANDA, ADVOCATE FOR R-6 AND R-8)
THESE W.Ps. ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE INITIATION OF THE PROCEEDINGS IN
TERMS OF THE SHOW CAUSE NOTICES
DATED:25.03.2019 ISSUED BY R-3 AS PER ANNEXURE-
H TO H6 AND THE ORDERS DATED:11.06.2019 PASSED
BY R-3 AS PER ANNEXURES-M TO M6.
THESE PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
Though matter is listed for orders, by consent of learned Advocates appearing for parties, it is taken up for final disposal.
2. I have heard the arguments of Sri M.R.Rajgopal, learned Advocate appearing for petitioners, Sri R Subramanya, learned Additional Advocate General along with Smt.H.C.Kavitha, learned HCGP appearing for respondents-1,3 & 5 and Sri T P Vivekananda, learned Advocate appearing for respondents-6 & 8. Perused the records made available by learned Additional Advocate General.
3. Petitioners herein were elected as members of the Managing Committee of Primary Agricultural Credit Co-operative Society Limited, Yaliyuru village, Mandya Taluk and District (for short 'society') in the elections held on 02.02.2015 and in the meeting of the members of Managing Committee held on 19.02.2015, first petitioner came to be elected as President for a period of 5 years. Show cause notices dated 25.03.2019 (Annexures-H to H5 & H6) came to be issued to petitioners calling upon them 5 to submit a reply as to why an administrator should not be appointed to the said society for the alleged irregularities morefully specified in the show cause notices. Immediately, petitioners submitted representation/explanation on 08.04.2019 as per Annexures-J to J6. After considering the reply submitted by petitioners, impugned orders dated 11.06.2019 (Annexures-M to M6) came to be passed whereunder third respondent - society came to be superseded under Section 30(2)(i) to (iii) of the Karnataka Co-operative Societies Act, 1959 ('Act' for short) by appointing an administrator and directing the said administrator to conduct the election within three months. It was also observed thereunder that petitioners would not be entitled to contest for elections of third respondent - society or any co-operative society for a period of one year. Being aggrieved by said orders, petitioners are before this Court.
4. It is the contention of Sri M.R.Rajgopal, learned Advocate appearing for petitioners that though impugned orders are appealable under Section 106 of the Act, petitioners have approached this Court invoking its 6 extraordinary jurisdiction under Article 226 of Constitution of India alleging impugned orders has been passed in violation of principles of natural justice. He would also submit that an opportunity of filing objections as provided under Section 30 of the Act would mean and include 'opportunity of personal hearing' also and as such, said provision has to be understood in such a manner which would achieve the object of the Act and if said provision is to be read in any other manner, it would defeat the purpose of the Act itself. He would also contend that petitioners have now been disqualified under impugned orders which would prevent them from contesting the election to any other co-operative body and as such, their right to contest for the election is infringed which would be in violation of Article 14 of the Constitution of India. Hence, he prays for quashing of impugned orders.
5. Per contra, Sri R Subramanya, learned Additional Advocate General appearing for respondents-1, 3 & 5 would support the impugned order and contends there is no error committed by the authorities; rigor of 7 law as prescribed under Section 30 have been followed wholly and marked differences can be found in extending an opportunity under sub-section (2) to file objections when compared to opportunity to be extended to a member under third proviso to sub-section (2) of section 30 which mandates an opportunity of being heard to be extended while passing the order of disqualifying a member of the board for contesting future election and as such, he prays for dismissal of the writ petitions.
6. In reply, Sri M.R.Rajgopal, learned Advocate appearing for petitioners would submit that under the impugned orders, there has been total non-application of mind by third respondent and he has relied upon the note made by his Registry/Officials to arrive at a conclusion that allegations made in the show cause notices are true and correct. He would also submit that third respondent does not have any power to sub-delegate his authority to his officials to form an opinion. Hence, he prays for impugned order being quashed.
7. Having heard learned Advocates appearing for parties and on perusal of records, this Court is of the 8 considered view that first contention relating to entertaining of these writ petitions on the ground of petitioners having alternate remedy of appeal requires to be examined.
8. There cannot be any dispute to the proposition of law that this Court exercising jurisdiction under Article 226 of Constitution of India is empowered to do complete justice between parties and in the said process, it would examine as to whether impugned order is an appealable order and if so, normally this Court would refuse to exercise jurisdiction. However, availability of alternate remedy by itself would not be a ground for refusing to exercise extraordinary jurisdiction vested in it particularly, if the order under challenge is one without jurisdiction or same having been passed in violation of principles of natural justice or where vires of the statute is under challenge or it is in violation of fundamental rights guaranteed under the Constitution of India. In such circumstances, this Court would definitely interfere and exercise extraordinary jurisdiction vested in it under Article 226 of the Constitution of India. However, availability of an alternate remedy, which is efficacious, 9 would be a good ground on which this Court would refrain from exercising jurisdiction or in other words, it is judicial restraint this court would adopt in such circumstances. However, there cannot be any straight jacket formula in this regard nor can it be described by any mathematical precision. It all depends upon facts and circumstances of each case. At this juncture, it would be appropriate to note the judgment of Hon'ble Apex Court in the case of AUTHORISED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER vs MATHEW K.C. reported in (2018)3 SCC 85 whereunder it has been held that existence of alternate statutory remedy would be a good ground for not exercising jurisdiction under Article 226 of Constitution of India. At the same time, exceptions to the general rule which has been carved out by Hon'ble Apex Court in the case of WHIRLPOOL CORPORATION vs REGISTRAR OF TRADE MARKS, MUMBAI AND OTHERS reported in (1998)8 SCC 1 would also be of some assistance, wherein it came to be held by Hon'ble Apex Court that issue of prerogative writs under 226 of the Constitution of India is plenary in nature and is not limited by any other 10 provision of the Constitution. The Court would have discretion to entertain or not to entertain a writ petition depending on the facts and circumstances which may be unfolded in a given case and it came to be held:
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without 11 jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
9. Keeping the aforesaid statutory principles in mind and applying to the case on hand, it would clearly indicate that ground of attack to the impugned orders by the learned Advocate appearing for petitioners is two fold namely:
(1) Impugned order has been passed in violation of principles of natural justice;
(2) Order of disqualification passed is without notice as required under sub-section (2) of Section 30 of the Act.
10. In order to examine this plea, naturally, writ petitions require to be taken up for consideration and adjudicated. When this exercise is undertaken by this Court, contention of the petitioners insofar as order of supersession and order of appointment of administrator is 12 concerned, would not call for interference for the reasons indicated herein below:
Perusal of impugned orders would indicate same has been passed by third respondent in exercise of power vested under Section 30(2) of the Act. Hence, it would be necessary to extract Section 30 of the Act and it reads:
"30. Supersession or suspension of the board.
(1) xxx (2) If in the opinion of the Registrar, the board of a co-
operative society :-
(i) persistently makes default or is negligent in the performance of the duties imposed on it by this Act, or the rules or the bye-laws or
(ii) commits any act, which is prejudicial to the interest of the society or its members; or
(iii) where there is a stalemate in the constitution or functioning of the board; or
(iv) has serious financial irregularities or frauds which have been detected; or
(v) fails to provide books and records, necessary information and assistance to the election commission as per the calendar 13 set out by the election commission to conduct elections to the board within the stipulated time and as a result or otherwise, the election commission has failed to conduct elections to the board within the stipulated time.
Registrar, may, after giving the board an opportunity to state objections, if any, by order in writing, supersede or suspend the said board and appoint an administrator to manage the affairs of the society for such period not exceeding six months:
Provided that the board of any co-
operative society shall not be superseded or kept under suspension where there is no Government share holding or loan or financial assistance or any guarantee by the Government.
Provided further that the supersession or suspension of the board of a co-operative bank shall be done only after consultation with the Reserve Bank of India/National Bank as the case may be and the provisions of Banking Regulation Act, 1949 shall also apply:
Provided also that, no member of the Board superseded under sub-section (2) shall, be eligible for being elected as a member of the Board of such society or any other Co-operative Society for a period of one year from the date of removal of such Board and no such order of disqualification for contesting the election to the Board shall be made unless a reasonable 14 opportunity of being heard, is given to the person against whom such order is made."
A plain reading of sub-section (2) of Section 30 of the Act would indicate that if in the opinion of the Registrar, the board of a co-operative society were to commit any of the acts specified in clauses (i) to (v) of sub- section (2), the board of such society can be superseded or suspended and an administrator can be appointed to manage the affairs of the society for such period not exceeding six (6) months. On account of the right of elected body being taken away, legislature have consciously incorporated principles of natural justice in the said provision itself namely, it would be mandatory on the part of the Registrar to give an opportunity to the board to state its objections if any, before proceeding to pass order to appoint administrator by superseding or suspending the board of such society. Thus, any infraction of this mandatory provision would definitely empower this Court to exercise power under Article 226 of Constitution of India for quashing of such orders. 15
11. In the instant case, original records which has been made available by learned Additional Advocate General appearing for respondents-1,3 & 5 has been passed by this Court and same would indicate that show cause notices have been issued to the petitioners prior to passing of impugned orders, which fact is also admitted by petitioners and in fact, petitioners have replied to the said show causes notices vide their reply dated 08.04.2019 - Annexure-J series as already noticed herein above. It is only on consideration of said reply given by each of the petitioners with reference to each of the allegations made in the show cause notices, impugned orders superseding the society and appointing an administrator has been passed. There is no infirmity committed by third respondent in this regard.
12. At this juncture, it would be appropriate to notice the contention raised by learned Advocate appearing for petitioners insofar as it relates to impugned orders having been passed based on the purported opinion expressed by the officials of the Registrar. Though at the first blush, said argument looks attractive, it is not 16 so factually, inasmuch as, order sheet of the proceedings which has culminated in passing of the impugned orders has also been perused by this Court. Office of third respondent after having obtained approval from third respondent to issue show cause notices to petitioners has issued the same and on receipt of reply submitted by petitioners on 08.04.2019, same has been placed for consideration by third respondent. Entries found in the order sheet reads:
"14.05.2019.
£ÉÆÃnù£À°è ¤ÃrgÀĪÀ DgÉÆÃ¥À, ¤zÉÃð±ÀPg À ÀÄ ¤ÃrgÀĪÀ GvÀgÛ ÁªÁgÀÄ ¥ÀnÖÀ ¹zÀÝ¥r À ¹zÉ.
25.05.2019
PÀArPÉ 08 gÀ vÀªÀÄä ¤zÉÃð±À£z À A
À vÉ ¸ÀAWÀzÀ
¤zÉÃð±ÀPgÀ ÀÄUÀ¼ÀÄ ¤ÃrgÀĪÀ DgÉÆÃ¥À GvÀg Û ÁªÁgÀÄ ¥nÖAiÀÄ£ÀÄß ¹zÀÝ¥r À ¹ vÀªÀÄä C£ÀĪÉÆÃzÀ£UÉ ÁV ªÀÄAr¹zÉ."
Nowhere in the order sheet it would disclose about any opinion having been expressed by the office of third respondent "PÀbÃÉ jAiÀÄ C©ü¥ÁæAiÀÄ" as found in the impugned order. It would not be out of context to refer the expression "PÀbÃÉ jAiÀÄ C©ü¥ÁæAiÀÄ" as found in the impugned orders would refer to the opinion of third respondent formed for arriving at the conclusion. Hence, said 17 expression cannot be attributed to be the opinion expressed by officials and not that of the Registrar. In fact, it is the opinion of third respondent himself inasmuch as, there is no reference to the opinion expressed by officials either in the order sheet of the proceedings or there being any remote reference to it in the entire file which would suggest that third respondent having directed his officers to render or prepare their opinion by noticing the objections filed by petitioners to the show cause notices. As such, contention raised by the learned Advocate appearing for petitioners in this regard cannot be accepted and it stands rejected.
13. Insofar as consequential order passed by third respondent disqualifying the petitioners from contesting election to any co-operative society for a period of one year, it would not stand the test of law, inasmuch as, there is total infraction of third proviso to sub-section (2) of section 30 of the Act. A plain reading of third proviso to sub-section (2) of Section 30 would indicate that where member of the Board superseded under sub- section (2) is to be disqualified for a period of one year, no 18 order so disqualifying or prohibiting such person from contesting election to the board can be made unless a reasonable opportunity of being heard is given to such person against whom such order is being made. In other words, protection given to such persons who are to be disqualified is traceable in the statutory provision and infraction of same would definitely empower this Court to arrive at a conclusion that it is in violation of principles of natural justice.
15. In the instant case, show cause notices which had been issued to petitioners has been perused by this Court threadbare and nowhere under the said show cause notices petitioners have been put on notice of probable disqualification order which would be passed against them. Entire original file also does not disclose that subsequent to passing of the order under Section 30(2) of the Act superseding the society and appointing an administrator, any further show cause notices having been issued to petitioners calling upon them to file their reply as to why they should not be disqualified from contesting election for a period of one year or they having 19 been heard in person in that regard before such order came to be passed. Resultantly, order disqualifying petitioners would not stand the test of law or in other words, impugned orders to the said extent would be in contravention of third proviso to sub-section (2) of section 30 of the Act.
16. Learned Additional Advocate General appearing for respondents-1,3 & 5 has brought to the notice of this Court that subsequent to impugned orders having been passed, notification publishing calendar of events to conduct election for society has been issued on 26.07.2019 and a copy of the said notification is made available along with a memo. Said memo is taken and placed on record. Perusal of same would indicate that elections to the society are scheduled to be held on 10.09.2019 and last date of filing of nomination has been fixed as 02.09.2019.
In view of subsequent event, respondents-1,3 & 5 would be at liberty to take such steps to conduct elections if necessary by calling for election afresh and issuing calendar of events.
20
17. For the reasons aforestated, I proceed to pass the following:
ORDER
(i) Writ petitions are allowed in part.
(ii) Orders dated 11.06.2019 (Annexures-M to M6) passed by third respondent insofar as it relates to disqualifying the petitioners from contesting election for a period of one year stands quashed and subject to observations made hereinabove.
(iii) Petitioners would be at liberty to challenge the impugned order dated 11.06.2019 passed by third respondent insofar as it relates to supersession and appointment of administrator by filing an appeal as provided under Section 106 of Karnataka Co-operative Societies Act,1959.
(iv) No order as to costs.
SD/-
JUDGE
*sp