Karnataka High Court
Prathamika Krushi Sahakari Sangha ... vs The State Of Karnataka on 15 July, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NOS.21012-21028/2013 (CS-RES)
BETWEEN:
1. PRATHAMIKA KRUSHI SAHAKARI SANGHA NIYAMIT,
THIMMANAHALLI, C.N.HALLI TALUK,
TUMKUR DISTRICT - 572241,
BY ITS SECRETARY: T.CHANDRASHEKAR,
S/o T.S.THIMMAIAH, AGE:57 YEARS.
2. PRATHAMIKA KRUSHI PATTINA SAHAKAR
SANGHA NIYAMIT,
C.N.HALLI, TUMKUR DISTRICT - 572214,
BY ITS SECRETARY: K.JAGADEESH,
S/o KENDADAIAH, AGE:58 YEARS.
3. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
MATHIGATTA, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: T.HANUMANTHAIAH,
S/o THIMMAIAH, AGE:53 YEARS.
4. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
J.C.PURA, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: S.MAHENDRA,
S/o S.SIDDALINGAPPA, AGE:52 YEARS.
5. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
SHETTIKERE, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: RAMACHANDRAIAH,
S/o HANUMANTHAIAH, AGE:38 YEARS.
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6. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
BARAGURU, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: B.SANNAKARIYAPPA,
S/o BOOTHAIAH, AGE:49 YEARS.
7. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
RAMANAHLLI, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:YATHISH NAIK,
S/o GANGA NAIK, AGE: 29 YEARS.
8. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
MALLIGEHALLI, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: SMT.KALPANA,
W/o CHANDRAIAH, AGE: 30 YEARS.
9. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
SIDLAKATTE, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: KALPANA,
S/o CHANDRAIAH, AGE: 30 YEARS.
10. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
HANDANAKERE, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO: H.T.NAGANNA,
S/o SAVANNA THIMMIAH, AGE:53 YEARS.
11. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
DODDENNIGERE, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:LAKSHMINARAYANA,
S/o NARASIMIAH, AGE:45 YEARS.
12. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
KUPPURU, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:S.S.SHANKARAPPA,
S/o SHIVAPPA, AGE:45 YEARS.
13. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
HULIYURU, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:H.D.SHIVANNA,
S/o DODDAHOBALIAH, AGE:44 YEARS.
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14. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
DASUDI, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:ESHWARIAH,
S/o M.NAGANNA, AGE:55 YEARS.
15. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
THIRTHAPURA, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:NATARAJU,
S/o RUDRAPPA, AGE:50 YEARS.
16. PRIMARY AGRICULTURAL CREDIT CO-OP. SOCIETY LTD.,
BELLARA, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:T.R.PRAKASH,
S/o RAMMIAH, AGE:44 YEARS.
17. PRIMARY AGRICULTURAL CO-OP. SOCIETY LTD.,
YALANADU, C.N.HALLI (TQ.)
TUMKUR DISTRICT - 572214,
BY ITS CEO:M.C.NAGARAJU,
S/o CHIDANANDIAH, AGE:43 YEARS.
... PETITIONERS
(BY SRI JAYAKUMAR S.PATIL, SENIOR ADV. FOR
SRI MAHESH R.UPPIN, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPARTMENT OF CO-OPERATION
GOVERNMENT OF KARNATAKA,
BANGALORE-560 001.
2. THE DIRECTOR OF CO-OPERATIVE AUDIT
NO.17, JAYA NIVAS, SHANKAR MUTT ROAD,
BASAVANAGUDI, BANGALORE-560004.
3. THE DEPUTY DIRECTOR OF CO-OPERATIVE AUDIT
TUMKUR DISTRICT
TUMKUR - 72101.
... RESPONDENTS
(BY SRI K.A. ARIGA, AGA)
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THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE
2ND PROVISO TO SUB-SEC(1) OF SECTION 63 OF THE KCS ACT, AS
AMENDED BY S.34 OF THE KARNATAKA ACT NO.3/2013 BY THE FIRST
RESPONDENT PUBLISHED IN THE KARNATAKA GAZETTE VIDE
ANNEXURE-B AS UNCONSTITUTIONAL AND VOID, ETC.
THESE PETITIONS COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Main prayer in these writ petitions is for a declaration that the second proviso to sub-section (1) of S.63 of the Karnataka Co-operative Act, 1959 (for short, the Act), as amended by S.34 of Karnataka Act No.3 of 2013, as unconstitutional and void and for quashing of the consequential communications - panels of Auditors, sent by the Director of Co-operative Audit and for grant of consequential reliefs.
2. Heard the learned advocates on both the sides.
3. Seeking identical reliefs, certain co-operative societies, registered under the Act, had filed W.P.Nos.79003-79014/2013. After hearing, the following questions were raised therein, for determination: 5
(i) Whether restricting the choice of a Co-operative Society to a panel of auditors and auditing firms, not exceeding ten, by the second proviso to sub-section (1) of Section 63 of the Act is arbitrary and violative of the proviso to clause (3) of Article 243ZM of the Constitution? Whether the restriction is also violative of Article 19(1)(c) & (g) of the Constitution?
(ii) Whether the impugned communications restricting the choice of a Co-operative Society to a panel of three Auditors/Auditing firms is illegal?
Upon consideration of the rival contentions and while allowing the writ petitions on 05.07.2013, it has been held as follows:
" 9. In my opinion, the restriction imposed by the second proviso to sub-section (1) of Section 63 of the Act restricting the choice of a Co-operative Society to choose an Auditor or an Auditing firm from a panel of auditors & auditing firms, not exceeding ten, is arbitrary and violative of Article 14 of the Constitution. It is also violative of the proviso to clause (3) of Article 243ZM of the Constitution as the said constitutional proviso provides for a panel for the State i.e. one panel for the State and also gives a choice to every co-operative Society to choose any of the eligible auditors or auditing firms from the said panel. Hence, providing separate panels of a few names to every Co- operative Society in the State as per the impugned proviso is violative of the constitutional proviso. Though under Section 13(2) of the General Clauses Act, 1897, words in the singular shall include the plural, and vice versa, the context does not admit of such a interpretation of the constitutional proviso i.e. permitting plurality of 6 panels, like giving separate panels of a few names to every Co- operative Society in the State as is done now. Any law which contravenes the Constitutional provisions is unconstitutional and void. Therefore, the second proviso to sub-section (1) of Section 63 of the Act which restricts the choice of a Co-operative Society to choose an auditor or an auditing firm from a panel, not exceeding ten, is unconstitutional and void being violative of Article 14 and the proviso to clause (3) of Article 243ZM of the Constitution. Consequently, the communication sent to each of the petitioners giving a panel of only three names of auditors & auditing firms to select any one of them from the said panel to audit the accounts of their respective Co- operative Societies is also illegal. In the view I have taken, it is unnecessary to examine the contention re. violation of the fundamental rights under Articles 19(1)(c) & (g) of the Constitution. For the reasons stated above, I make the following order:
The second proviso to sub-section (1) of Section 63 of the Karnataka Co-operative Societies Act, 1959 is declared as unconstitutional and void and shall not be given effect to. Consequently, impugned communications are also set aside. "
4. Perused the aforesaid Order. It is trite that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here, I have an Order, admittedly rendered on facts and law, indistinguishably identical, and that Order must bind. 7
Following the Order, noticed supra, these writ petitions are allowed. Since sub-section (1) of S.63 of the Act, as amended by S.34 of Karnataka Act No.3 of 2013 having already been declared as unconstitutional, void and be not given effect to, it is unnecessary to grant the declaratory relief prayed in these petitions. However, in view of the Order, noticed supra, the impugned panels of auditors vide Annexures- C1 to C17 being arbitrary are quashed. Consequently, the petitioners shall get their accounts audited, in accordance with law.
No costs.
Sd/-
JUDGE sac*