Karnataka High Court
K Bhoopal vs Joint Registrar Of Co-Operative on 10 November, 2017
Bench: B.S Patil, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.A.NO. 6444/2017 (CS-RES)
BETWEEN
K BHOOPAL
DIRECTOR, AIRCRAFT EMPLOYEES
CO-OPERATIVE SOCIETY,
NO.G-27, 2ND A MAIN ROAD,
HAL OLD TOWNSHIP,
VIMANAPURA POST,
BANGALORE-560 017
... APPELLANT
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI BIPIN HEGDE, ADV.)
AND
JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES,
BENGALURU REGION,
GMC BUILDING,
2
CHAMARAJPET,
BENGALURU-560 018
... RESPONDENT
(BY SRI A.S.PONNANNA, ADDL. ADV. GENERAL AND
SRI SRI VIJAYKUMAR Y.H, AGA)
***********
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 09.11.2017 PASSED IN W.P.NO.48378/2017.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
B.S.PATIL J, DELIVERED THE FOLLOWING:-
JUDGMENT
1. This appeal is filed challenging the order dated 09.11.2017 passed by the learned Single Judge dismissing the writ petition filed in W.P.No.48378/2017. Writ petition has been dismissed on the ground that appellant had an alternative remedy of preferring an appeal before the Additional Registrar of Co-operative Societies under Section 106 of the Karnataka Co-operative Societies Act, 1959 (for short 'the Act').
2. It is necessary to advert to few facts which are relevant for the purpose of disposal of this appeal. A show 3 cause notice was issued to appellant on 05.04.2017 proposing to initiate proceedings under Section 29-C of the Act for his disqualification. Certain allegations of irregularities were made against appellant during his tenure as Director of the Aircraft Employees House Building Co-operative Society.
3. Appellant filed objections along with an application requesting to treat preliminary objection raised by him regarding jurisdiction of the Joint Registrar of Co-operative Societies to entertain the matter as a preliminary issue and pass orders regarding his jurisdiction. The application was heard on 06.10.2017. An order was passed regarding the same on 09.10.2017 holding that decision on the issue raised regarding jurisdiction would be as good as consideration of the main matter itself and therefore, there was no need to examine the same.
4. Appellant obtained certified copy of the said order on 12.10.2017 and immediately filed writ petition in W.P.No.47076/2017 on the following day itself i.e., on 4 13.10.2017, challenging the order passed by the Joint Registrar.
5. The matter came up before the Court on 23.10.2017. On that day, according to appellant, he was informed that on 21.10.2017 itself final order had been passed by the Joint Registrar disqualifying the appellant under Section 29-C of the Act. On 25.10.2017, W.P.No.48378/2017 out of which the instant appeal arises came to be presented. Petitioner - appellant herein raised several contentions challenging the order of disqualification including the jurisdictional question.
6. As the appellant had contended that the Joint Registrar of Co-operative Societies had no jurisdiction to initiate proceeding under Section 29-C on the basis of allegations made in the show cause notice, petitioner laid challenge to the show cause notice also. It was also contended before the learned Single Judge that no fair and reasonable opportunity was given to the appellant to have his say with regard to the merits of the allegations. 5 Petitioner also contended that after the preliminary objection raised regarding the jurisdiction was rejected the appellant had sought time for arguments on the main matter and had indeed requested the Joint Registrar of Co- operative Societies to defer the matter because of the pendency of the writ petition. It is also the case of appellant that subsequently on 21.10.2017 final order disqualifying the appellant was passed and therefore, there was no fair and reasonable opportunity afforded to the appellant by the Joint Registrar. With these among other grounds appellant contended in the writ petition that the order of disqualification deserved to be interfered with exercising jurisdiction under Articles 226 and 227 of the Constitution of India by this Court.
7. After hearing learned counsel for both parties, learned Single Judge has dismissed the writ petition declining to interfere with the matter as the appellant had an alternative remedy of preferring appeal under Section 106 of the Act. Appellant has not produced copy of the order passed by the learned Single Judge. It is contended 6 by learned counsel for appellant that certified copy is not yet ready and that in the meanwhile proceedings regarding no confidence motion against the existing president have been initiated and appellant has been debarred from participating in the same on account of the order of disqualification passed by the Joint Registrar. Having due regard to this aspect of the matter and as the writ petition has been dismissed on the ground of availability of alternative remedy, without going into the merits of the matter we are persuaded to dispense with the production of the copy of order passed by the learned Single Judge.
8. We have heard learned Senior counsel appearing for appellant Sri Jayakumar S. Patil and the learned Additional Advocate General appearing for respondent - Sri A.S.Ponnanna.
9. An application has been filed by applicants seeking to come on record as an additional respondents contending that they were petitioners before the Joint Registrar and therefore, they are interested in participating 7 in this proceeding. We have heard Sri Manmohan. P.N., learned counsel appearing for impleading applicants on the application filed and also on the merits of the matter.
10. It emerges that appellant, at an earliest point of time when the proceedings were initiated against him by issuing show cause notice for disqualification, had raised jurisdictional question before the Joint Registrar. When the Joint Registrar rejected the application filed by him to decide the jurisdictional question as a preliminary issue, appellant filed writ petition. When the writ petition was pending before this Court, the Joint Registrar passed an order finally disposing of the proceedings thereby disqualifying the appellant. Extract of the order sheet maintained by the Joint Registrar discloses that proceedings have been expeditiously concluded.
11. Contention of appellant is that he was not given fair and reasonable opportunity to have his say with regard to the merits of the matter. We do not wish to go into this aspect of the matter as several factual aspects have been 8 asserted which are seriously disputed by respondents. The fact remains that there is a statutory remedy of appeal provided under Section 106 against the order passed by the Joint Registrar of Co-operative Societies under Section 29-C of the Act and the appellate authority is vested with power to grant interim stay as is evident from sub-section (3) of Section 106 of the Act. Aggrieved party viz., appellant herein has got two months time as per the provisions of the Act and the rules framed there under to file an appeal. Appellant has chosen to file the writ petition, may be on account of the contentions he has been urging since beginning that the Joint Registrar did not have jurisdiction to entertain the matter and also that he was not given fair and reasonable opportunity to have his say in the matter and hence, principles of natural justice were not adhered to.
12. Be that as it may, learned Single Judge has rightly asked the writ petitioner to avail the remedy of filing an appeal. However, in our view, while doing so right and interest of appellant ought to have been protected by 9 passing appropriate order suspending the order of disqualification for a limited period so as to enable him to file an appeal and seek appropriate interim orders before the Appellate Authority. Indeed, in matters like this, if such relief is not granted it may lead to irreparable and irreversible situation which may not be remedied subsequently.
13. In somewhat similar circumstances, a coordinate bench of this Court in W.A.No.1666/2008 disposed of on 05.11.2008 has observed that where relevant provisions of the relevant rules or bye-laws provide for an appeal against disqualification and statutory appeal was provided under Section 106 of the Act, the appellate authority was empowered to pass an interim order under Section 106(3). As observed by the Division Bench in the aforementioned case, basic question regarding disqualification itself would be the subject matter in the appeal. Hence, it would be the duty of the appellate authority to examine the correctness of the order of the original authority disqualifying the petitioner and also to find out if the same has to be stayed 10 pending consideration of the appeal. Indeed, the Division Bench has gone to the extent of saying that in such case, if interim stay is not granted, it would lead to irreparable loss to the person concerned.
14. Hence, while we are in agreement with the order passed by the learned Single Judge declining to interfere with the matter in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India when an efficacious statutory remedy of appeal is provided under Section 106 of the Karnataka Co-operative Societies Act, we are persuaded to grant time to the appellant till 14.11.2017 to file an appeal along with necessary interlocutory application seeking interim stay. Till consideration of the said application and until passing of appropriate orders on the same, order of disqualification passed by the Joint Registrar disqualifying the appellant to be the Director of Aircraft Employees House Building Co- operative Society, shall stand suspended. It is open to the Joint Registrar of Co-operative Societies to consider the application on 14.11.2017 or on any other day of his 11 convenience and pass orders in accordance with law. Ordered accordingly.
We make it clear that we have not expressed any opinion on the merits of the matter and the Joint Registrar shall pass the order strictly on the merits of the case.
Sd/-
JUDGE Sd/-
JUDGE VP