Karnataka High Court
Deepak S/O Virupakshappa Patil vs The State Of Karnataka on 1 September, 2017
Author: K.Somashekar
Bench: K. Somashekar
1
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
W.P. Nos.108033-108036/2017 (CS-EL/M)
BETWEEN
1. DEEPAK S/O VIRUPAKSHAPPA PATIL
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: DESHNUR, TALUK: BAILHONGAL,
DIST: BELAGAVI.
2. TAMMANNA S/O YALLAPPA MANOJI
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: DESHNUR, TALUK: BAILHONGAL,
DIST: BELAGAVI.
3. SADASHIV IS/O APPANNA KAMATAGI
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: DESHNUR, TALUK: BAILHONGAL,
DIST: BELAGAVI.
4. SMT.BALAVVA W/O BHIMSHETTI PUJERI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: DESHNUR, TALUK: BAILHONGAL,
DIST: BELAGAVI.
... PETITIONERS
(BY SRI.SHIVARAJ P.MUDHOL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF CO-OPRATION,
M.S. BUILDING, BENGALURU-1.
2. THE KARNATAKA CO-OPERATIVE
ELECTION AUTHORITY, SHANTI NAGAR,
K.H. ROAD, BENGALURU,
REPRESENTED BY ITS SECRETARY.
2
3. THE RETURNING OFFICER
PRATHAMIK KRUSHI PATTIN SAHAKAR
SANGH NIYAMIT, DESHNUR,
TQ: BAILHONGAL, DIST: BELAGAVI.
4. THE REGISTRAR OF CO-OPERATIVE SOCIETY,
ALI-ASKAR ROAD, BENGALURU.
5. THE DEPUTY REGISTRAR OF CO-OPERATIVE
SOCIETY, BELAGAVI, DIST: BELAGAVI.
6. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETY, BAILHONGAL, TALUK: BAILHONGAL,
DIST: BELAGAVI.
7. THE PRATHAMIK KRUSHI PATTIN SAHAKAR
SANGH NIYAMIT, DESHNUR,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
TALUK: BAILHONGAL, DIST: BELAGAVI.
8. THE SPECIAL OFFICER
THE PRATHAMIK KRUSHI PATTIN SAHAKAR
SANGH NIYAMIT, DESHNUR, AND SALE OFFICER,
THE OFFICE OF THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETY, BAILHONGAL..
9. BASAVARAJ S/O.APPANNA BHAVIKATTI,
AGE 58 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
10. MALLIKARJUN S//O.BHAVEPPA KOTTAL,
AGE 60 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
11. KASHAPPA S/O.BASAVANEPPA KAMATAGI,
AGE 65 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
12. BASAVARAJ S/O.BASAVANEPPA KEDARI,
AGE 45 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
13. SHANKAR S/O.YAMANAPA BAJANTRI,
AGE 60 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
3
14. SHEKAVVA W/O GATIGEPPA KAMATAGI,
AGE 55 YEARS, OCC: AGRICULTURE,
R/O: AT POST DESHNUR, TQ: BAILHONGAL,
DIST: BELAGAVI
... RESPONDENTS
(BY SMT.K.VIDYAVATI, AGA FOR R1, R4, R5, R6 & R8;
SRI.PRASHANT HOSAMANI, ADVOCATE FOR R9 TO R14;
SRI.HEMANTHKUMAR L. HAVARGI, ADVOCATE R2 & R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF DECLARATION DECLARING THAT THE CLAUSE (1) OF
SUB-SECTION (3) AND SUBSECTION (5) OF SECTION 31 OF THE
KARNATAKA CO-OPERATIVE SOCIETIES ACT IS ULTRAVIRES OF
ARTICLE 243-ZJ OF THE CONSTITUTION OF INDIA AND ETC.,
THESE WRIT PETITIONS COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATIONS, THIS DAY THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel appearing for the parties and perused the records.
2. The petitioners have filed these writ petitions challenging the constitutional validity of sub-Section (3) and (5) of Section 31 and clause (iii) of Section 18-B of the Karnataka Co-operative Societies Act, 1959 (for short "Act") and further sought for declaration that the first petitioner is not ceased to be a President/Director of the 7th respondent Society and petitioner Nos.2 to 4 not ceased to be the Directors of the 7th respondent - Co-operative Society and 4 notwithstanding the order passed by the sixth respondent appointing the eighth respondent as Special Officer of the 7th respondent Society for a period of six months in exercise of power under Section 31(1) of the Act. Further, the petitioners have sought for directing the respondents not to conduct the election to the place of the petitioners and to allow the petitioner No.1 to continue to function as President and the petitioner Nos.2 to 4 to continue to function as Board of Directors of the 7th respondent Society by considering the representation dated 02.08.2017 vide Annexure-F. Further they have sought for quashing the impugned order dated 03.07.2017 in No. AR 10/RSR/V/A/PACS Deshnur/ 2017- 2018/19 issued by the sixth respondent vide Annexure-D. Apart from the above, the petitioners are also seeking to issue a direction to the respondents not to fill up the place of the petitioners in the Board of the 7th respondent Society till completion of their term of office notwithstanding the impugned order dated 03.07.2017 issued by the sixth respondent vide Annexure-D. 5
3. The factual matrix of the case are that the petitioners were elected as Board of Directors of the 7th respondent Society on 15.02.2015. Their term of office is for a period of five years, which will come to an end in the year 2020. Six directors have tendered their resignation. The sixth respondent appointed the respondent No.8 as Special Officer and directed him to conduct election to all the Board of Directors' posts including the place of the petitioners, though the petitioners have not tendered their resignations. Therefore, the petitioners are required to continue their posts till their term of office is completed. Now the Returning Officer has issued Calendar of Events for conducting election to the post of Board of Directors including the place of the petitioners. The impugned order vide Annexure-D is contrary to Section 28-A and the provisions of clause (a) sub-Sections (3) and (5) of Section 31 of the Act is ultra-vires of Article 243- ZJ of the Constitution of India.
4. The learned counsel for the petitioners during the course of arguments contended that election to the post of Board of Directors of the 7th respondent was held on 6 15.02.2015. The petitioner Nos.1 to 4 were duly elected to the post of Directors of the 7th respondent - Society. Copy of the declaration of election results published by the Returning Officer is produced and marked at Annexure-A and the copy of the declaration of result of the office bearers is produced and marked at Annexure-B. Sixth respondent taking note of the resignation of six Directors and since there is no quorum, has decided to appoint the Special Officer for a period of six months and to conduct fresh election to the post of Board of Directors. Hence on 03.07.2017 passed the impugned order appointing the eighth respondent as Special Officer and directed the Special Officer to conduct fresh election to the post of Board of Directors of the 7th respondent Society and the same is produced and marked at Annexure-D.
5. It is further contended that as per the provisions of Section 28-A sub Section (4) of the Act provides the period of term of office of Board of Directors of a Cooperative Society is five years from the date of election and the said Board shall be deemed to have vacated its office after completion of their term. Provisions of sub-Section (4) of Section 28-A reads thus: 7
"28-A. Management of co-operative societies vest in the board.- XXXXX (4) Subject to the provisions of Sections 29-A and 39-A, the term of office of the members of the board shall save as otherwise five years from the date of election and they shall be deemed to have vacated office as such members of the board on the date of completion of the said term."
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6. The provisions of sub-Section (1) of Section 31 of the Act provides for appointment of a Special Officer to a Co- operative Society in a special circumstance where the Board's strength is less than the required, to form quorum and hence, the Society cannot function in accordance with the Act, Rules and Bye-laws. The effect of the impugned order passed by invoking the provisions of Section 31 of the Act would be keeping a Board in abeyance till the election to the vacant post in the Board are conducted, making the validly constituted Board to function.
7. Apart from the above, six directors have tendered their resignation to their respective posts and the remaining Directors are arrayed as petitioners herein. Further, clause (a) 8 of sub-Section (3) of Section 31 of the Act, which provides that on passing of the order under sub-Section (1) of Section 31 of the Act, the members of the Board of Co-operative Society, if any, shall vacate and shall be deemed to have vacated their office etc., is highly erroneous and is contrary to Section 28-A(4) of the Act. But Clause (a) of sub-section (2) of Section 31 is in violation of Article 243-ZJ(2) of the Constitution of India and contrary to Section 28-A of the Act. Therefore, they are liable to be declared as ultra vires of Constitution of India.
8. In support of his contentions, the learned counsel for the petitioners has placed reliance on the judgment of this Court in the case of The Hassan Co-operative Milk Producers Societies Union Limited and Others vs. State of Karnataka, Department of Co-operative Societies and Others reported in ILR 2014 KAR 4257, wherein it is held that sub-Section (4) of Section 28-A of the Act has retrospective operation and also directed the members of the existing Boards shall continue to hold office till expiry of the period of five years from the date of their election and no 9 Administrator can be appointed till then. On all these grounds, the learned counsel for the petitioners prays the Court to allow these writ petitions. Further, the counsel has contended that the provisions of the aforesaid Act shall be within the constitutional provisions. But, clause-A of sub Section 3 of Section 31 of the Act is violation of Article 243-ZJ of the Constitution of India and also contrary to the aforesaid Act. As such, the counsel has sought for shortfall declared as ultra vires of the Constitution of India. However, the contention taken by the learned counsel for the petitioner does not hold substance in view of the discussion made supra.
9. Countering the arguments advanced by the learned counsel for the petitioners, the learned AGA has specifically taken the contention relating to clause (a) of sub- Sections (3) and (5) of Section 31 of the Karnataka Co- operative Societies Act is ultra-vires of Article 243-ZJ of the Constitution of India, which provides that the board shall consist of such number of Directors as may be provided by the Legislature of a State by law, provided that the maximum 10 number of Directors of a Co-operative Society shall not exceed twenty-one. Further, 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 term of office of the Board is less than half of its original term. Further, the provisions of Article 243-ZJ clearly reveals that the Board shall consist of such number of Directors as may be provided by the Legislature of a State, by law.
10. It is further contended that Section 29-E of the Act, states that filling up of causal vacancy in the office of members of the Board, wherein it is 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. If any vacancy in the office of members of the Board of Co-operative Society by reason of death, resignation, removal or otherwise shall be filled up in such a manner as may be specified in the bye-laws of such Society. Further the writ petitions are liable to be dismissed as being misconceived by virtue of the declaration contained in sub- 11 Section (3) of Section 31 of the Act. Consequent upon an order being passed under Section 31(1) of the Act, the members of the Board, if any, shall vacate and shall be deemed to have vacated their offices and the Special Officer shall be deemed to have assumed charge of the affairs of the Society.
11. In the present case, the petitioners were elected as Board of Directors of the 7th respondent Society on 15.02.2015 and their term of office is for a period of five years, which will come to an end in the year 2020. Among the Directors, six Directors have tendered their resignation. The sixth respondent passed the impugned order vide Annexure-D appointing eighth respondent as Special Officer and directed him as per Annexure-D to conduct election to all the Board of Directors posts including the place of the petitioners. Therefore, the contention taken by the learned counsel for the petitioners is contrary to the provisions of the aforesaid Article 243-ZJ of Constitution of India and also Sections 29-E and 31(3) of the Act. Further, the writ petitions are liable to be dismissed on the ground that the petitioners have 12 failed to exhaust the efficacious, alternative remedy of appeal as provided under sub-Section (1)(e-1) of Section 106 of the Karnataka Co-operative Societies Act, against the order passed by the sixth respondent vide Annexure-D under Section 31(1) of the Act. Hence, prays for dismissal of the writ petitions.
12. Learned counsel appearing for the remaining respondents supports the arguments advanced by the learned AGA and prays for dismissal of the writ petitions.
13. In this writ petition the petitioners are challenging the constitutional validity of sub-Section (3) and (5) of Section 31 and clause (iii) of Section 18-B of the Act, and further sought for declaration that the first petitioner is not ceased to be a President/Director of the 7th respondent Society and petitioner Nos.2 to 4 not ceased to be the Directors of the 7th respondent - Co-operative Society and notwithstanding the order passed by the sixth respondent appointing the eighth respondent as Special Officer of the 7th respondent Society for a period of six months in exercise of power under Section 13 31(1) of the Act. Whereas the petitioners were elected as Board of Directors of the 7th respondent Society on 15.02.2015. Their term of office is for a period of five years, which will come to an end in the year 2020. Six directors have tendered their resignation. The sixth respondent appointed the respondent No.8 as Special Officer and directed him to conduct election to all the Board of Directors' posts including the place of the petitioners, though the petitioners have not tendered their resignations. Therefore, the petitioners are required to continue in their posts till term of office is completed. Now the Returning Officer has issued Calendar of Events for conducting election to the post of Board of Directors including the place of the petitioners. The impugned order vide Annexure-D is contrary to Section 28-A and the provisions of clause (a) sub-Sections (3) and (5) of Section 31 of the Act is ultra-vires of Article 243-ZJ of the Constitution of India.
14. Keeping in view the submissions made by the learned counsel appearing for the parties and as well as the grounds urged in these petitions and so also the provisions of 14 the Act as stated supra, it reveals that the petitioners have failed to exhaust the efficacious, alternative remedy of appeal as provided under sub-Section (1)(e-1) of Section 106 of the Act, against the order passed by the sixth respondent vide Annexure-D under Section 31(1) of the Act.
15. For the above reasons, I am of the considered opinion that, there is no substance in the contention taken by the learned counsel for the petitioners to proceed further, as well as there are no justifiable grounds urged in these writ petitions to grant the relief as prayed for. Therefore the writ petitions being devoid of merit are liable to be rejected.
Accordingly, the writ petitions are dismissed. In view of the dismissal of the writ petitions, I.A.No.2/2017 filed for vacating interim order dated 09.08.2017 does not arise for consideration. Accordingly, the same stands rejected.
Sd/-
JUDGE Vnp*/Bvv