Karnataka High Court
Valaballary Channabasaveswar vs The State Of Karnataka And Ors on 17 June, 2019
Author: P.B. Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT KALABURGI
DATED THIS THE 17th DAY OF JUNE 2019
PRESENT
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
AND
THE HON'BLE MR.JUSTICE P.G.M. PATIL
WRIT APPEAL NOS.200547-200551/2016 AND
200552-555/16
C/W
WRIT APPEAL NO.200519/2016 (CS-EL/M)
IN WRIT APPEAL NOS.200547-200551/2016
AND 200552-555/16
BETWEEN:
1. SRI. HAMPANA GOUDA BADARALI
S/O.VENKATRAYA GOUDA
AGE: 61 YEARS, PRESIDENT
VALLABELLARY CHANNABASAVESHWARA
EDUCATION SOCIETY
BADRAHALLI COMPOUND
NEAR POST OFFICE, SINDHANOOR
RAICHUR DISTRICT-584 128
2. DR.B.N.PATIL
MEMBER, VALABALLARY
CHANNABASAVESHWARA
EDUCATION SOCIETY
R/O. ANADANESHWARA HOSTEL
ADARSH COLONY, HATTI ROAD
SINDHANUR-584 128
3. SRI. SHRNIK RAJ SHET
S/O. AMARCHAND SHET
AGED ABOUT 58 YEARS
SECRETARY,
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY
2
R/O. THERAPANTHI BHAVAN
MARVADI GALLI OLD BAZAR
SINDHANUR-584 128
4. SRI. BASAVARAJGOUDA BADRALI
S/O. VENKATRAYAGOUDA
AGED ABOUT 56 YEARS, MEMBER
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY
OCC: ADVOCATE
R/O. MEHABOOB COLONY
NEAR RGM SCHOOL
SINDHANUR-584 128
5. SRI.M.AMAREGOUDA
S/O.MARIBASANAGOUDA
AGED ABOUT 44 YEARS
MEMBER
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY
OCC: ADVOCATE
R/O. MEHABOOB COLONY
NEAR RGM SCHOOL
SINDHANUR-584 128
6. DR.S.V.PATIL
AGED ABOUT 56 YEARS
MEMBER
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY (REGD.)
POST LINGASGUR
LINGASGUR TALUK
RAICHUR DISTRICT-584 122
7. SRI.SUGURAPPAGOUDA
S/O. AYYANAGOUDA
AGED ABOUT 54 YEARS
MEMBER
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY (REGD)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
8. SRI. VENKANAGOUDA BADRALI
S/O.VIRUPANAGOUDA
AGED ABOUT 36 YEARS
MEMBER,
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY (REGD)
3
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
9. SRI PAMPANAGOUDA BADRALI
S/O.BASANAGOUDA
AGED 44 YEARS, MEMBER
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
... APPELLANTS
(BY JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR
RAJA AMRESH SHARANAPPA, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA
BANGALORE-560 001
2. THE DISTRICT REGISTRAR
DISTRICT REGISTRAR OFFICE
STATION ROAD
RAICHUR-584 101
3. VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASUGUR, LINGASUGUR TALUK,
RAICHUR DISTRICT-584 122
BY ITS PRESIDENT
SRI K.VEERANAGOUDA MASKI
4. SRI K.VEERANGOUDA MASKI
S/O.BASANGOWDA
AGED ABOUT 75 YEARS
MEMBER/PRESIDENT
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
5. SRI SHIVASHARANAPPA PATIL
S/O.MAHADEVARAO
AGED ABOUT 57 YEARS
SECRETARY
VALLABALLARY CHANNABASAVESHWARA
4
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
6. CHANDRASHEKHAR PATIL
S/O.VEERANGOUDA
AGED ABOUT 59 YEARS
VICE-PRESIDENT
VALABALLARY CHANNABASAVESHWARA
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
7. SRI. MARIGOUDA
S/O.BASANGOUDA
AGED 49 YEARS
JOINT SECRETARY
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
8. SRI.SIDDANAGOUDA
S/O.SHIVANNA GOWDA
AGED ABOUT 60 YEARS
EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
9. SRI BASAVARAJ SHIREDDY
S/O.RUDRAPPA
AGEDABOUT 67 YEARS
EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRTICT-584 122
10. SRI.VENKANAGOUDA BASSAPUR
S/O.HANUMAN GOWDA
AGED ABOUT 64 YEARS
EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
5
11. SRI VISHWANATHREDDY
S/O.BASANGOWDA
AGED ABOUT 58 YEARS
EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
12. SRI.RAJASHEKAR
S/O.HONNAPPA
AGED ABOUT 62 YEARS
ADVOCATE, EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122
13. SRI.SHIVALINGAPPA
S/O.AMARAPPA
AGED ABOUT 64 YEARS
EXECUTIVE MEMBER
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122 .. RESPONDENTS
(BY SRI.K.M.GHATE, ADV. FOR R-1 & R-2
SRI.KALYAN BASAVARAJ, FOR R.J.BHUSARE, ADV. FOR R3
SRI.AMEET KUMAR DESHPANDE, ADV. FOR R4 TO R-13)
THESE APPEALS ARE FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT. BY THE ADVOCATE FOR
APPELLANT PRAYING THAT THIS HON'BLE COURT TO SET
ASIDE THE ORDER PASSED IN WRIT PETITION NO.W.P.
NO.30023 & 30221-230/2016 DATED:18.11.2016 AND DISMISS
THE WRIT PETITION, IN THE INTEREST OF JUSTICE AND ETC.
IN WRIT APPEAL NO.200519/2016
BETWEEN:
1. VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCEITY (REGD.)
POST LINGASGUR, LINGASUGUR TALUK
RAICHUR DISTRICT-584 122
REPRESENTED BY ITS SECRETARY
SHRNIK RAJ SHET
6
S/O.AMARCHAND SHET
AGED 64 YEARS
R/AT BHAGHAVAN MAHAVEER ROAD
SINDHANUR-584 128 ... APPELLANT
(BY JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR
RAJA AMRESH SHARANAPPA, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
BY ITS PRINCIPAL SECRETARY
VIDHANA SOUDHA
BANGALORE-560 001
2. THE DISTRICT REGISTRAR
DISTRICT REGISTRAR OFFICE
STATION ROAD
RAICHUR-584 101
3. SRI K.VEERANGOUDA MASKI
S/O.BASANGOWDA
AGED ABOUT 75 YEARS
MEMBER/PRESIDENT
VALABALLARY CHANNABASAVESHWAR
EDUCATION SOCIETY (REGD.)
POST LINGASGUR, LINGASGUR TALUK
RAICHUR DISTRICT-584 122 ... RESPONDENTS
(BY SRI.K.M.GHATE, ADV. FOR R-1 & R-2
SRI.KALYAN BASAVARAJ, FOR R.J.BHUSARE, ADV. FOR R3)
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, BY THE ADVOCATE FOR
APPELLANT PRAYING THAT THIS HON'BLE COURT TO SET
ASIDE THE ORDER PASSED BY THE HON'BLE COURT, IN WRIT
PETITION NO.W.P. NO.205546/2016(WHICH CONNECTED WITH
W.P.30023 & 30221-230/2016) DATED: 18.11.2016 AND
DISMISS THE WRIT PETITION, IN THE INTEREST OF JUSTICE
AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
25.04.2019 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, BAJANTHRI.J., DELIVERED THE
FOLLOWING:
7
JUDGMENT
These appeals arise out of the orders passed in W.P. Nos.30023 and 30221-230/2016 (CS-EL/M) connected with W.P. No.205546/2016 (GM-KSR). Writ Appeal No.200519/2016 filed by the Secretary- Valaballary Channabasaveswar Education Society registered by its President K. Veerangouda Maski and others (for brevity K.V.Maski).
2. Writ Appeal Nos.200547-551/2016 connected with W.A.No.200519/2016 arises out of common order of the learned Single Judge dated 18.11.2016 passed in W.P. Nos.30023 & 30221- 230/2016 c/w W.P.205546/2016 filed by Valaballary Channabasaveswar Education Society (Regd.) represented by its President Sri K Veeranagouda Maski and others and Vallaballary Channabasaveswar Education Society (regd.) represented by its Secretary Shrnik Raj Shet (for brevity S.R.Shet) respectively.
3. Brief facts of the case are that Valaballary Channabasaveswara Education Society (for brevity 8 'Society') is a Society registered under the provisions of the Karnataka Societies Registration Act, 1961 (for brevity the 'Act')'. The Society was registered on 30.12.1983. The said Society represented by its President Sri K. Veeranagouda Maski and ten others, claiming to be the members of the executive committee of the aforesaid Society and had presented writ petition Nos.30023 and 30221-30230/2016, questioning the proceedings of the District Registrar, Raichur dated 13.05.2016 vide Annexure-A. The District Registrar vide his proceedings dated 13.05.2016 by which the earlier communication/memorandum dated 02.05.2016, issued by him approving the newly elected President of Society and other office bearers, pursuant to the election held on 30.04.2016, is in terms of the Act and Rules read with Rules and Regulations of the Society, is without noticing the information furnished by the respondent No.3, for the period from 2015-2016 to 2017-2018 and that the District Registrar having not issued any directions to K.V.Maski, Election were conducted by him on his own and his supporters. He, 9 therefore sought to withdraw the communication dated 13.05.2016, but due to oversight and typographical error instead of informing that the election conducted on behalf of K.V.Maski and his party faction to elect the members of the Executive Council (respondent herein) was invalid had issued communication on 02.05.2016, holding that the election conducted are quite valid. Therefore, the memorandum issued on 02.05.2016 was required to be canceled and held the same as cancelled. The District Registrar further ordered that Sri Hampana Gouda Badarali elected as Adyaksha and members of the governing council who were also elected along with him shall continue from 2015-16 till 2017-18 to manage the affairs of the Society as it was the said committee which had to be identified as valid executive committee. Feeling aggrieved by the proceedings of the District Registrar, respondents had filed the writ petition.
4. During pendency of the respondents' writ petition, appellant Sri. S.R.Shet filed W.P. No.205546/2016 in order to counter blast petition filed 10 by the respondents on the presumption that in any event challenge made to the order passed on 2.5.2016 and 13.5.2016 cannot be entertained as the District Registrar has subsequently cancelled the said orders with reference to order dated 13.05.2016. Society consists of 138 or 122 or 25 or 11 members are disputed question of facts among the two factions led by Veeranagouda Maski and others (one group) and by S.R. Shet (another group).
5. In the Annual General Body meeting held on 01.02.2016 notice was issued, under the chairmanship of Hampana Gouda Badarali, fixing the date of meeting as 22.02.2016 on 10.00 a.m. One of the Agenda relates to appointment of Administrative member of Board of the Society for the year 2017-18. On 22.02.2016, in the committee, the total members were shown as 15 and presence of the members of the Society was also shown as 15. On 10.03.2016, the District Registrar - Raichur District issued receipt relating to documents filed by the Adyakasha of the Society dated 8.3.2016 (annexure-F). 11
6. At that juncture, the then Minister of Revenue Sri V.Srinivas Prasad - pursuant to the representation of Sri Basavaraj Patil Anwari, Former Union Minister, sought the District Registrar, Raichur District to examine the illegalities stated to have occurred in the election process for the Society and to rectify the same in accordance with law. The former Union Minister, pointed out the illegalities in holding election to the Society with reference to the issue relating to participation of only 15 members to hold the elections whereas, the Society consists of 138 members. It was also pointed out that in terms of bye-laws, the holding of Election was required to be published in the daily newspaper. Further, each member of the Society is entitled to receipt of notice relating to holding of election. Thus, he sought for cancellation of elected members list and for afresh elections of the Society to be held in accordance with rules and regulations of the Society.
12
7. District Registrar, directed the Society to hold fresh elections, since elections stated to have been held, among 15 members, being not in accordance with rules and regulations of the Society, as it suffered from various lacunas, like not issuing notice to 138 members and procedure laid down for the purpose of election in the rules and regulations have been not been complied. Accordingly, election notification and calendar of events for the year 2016 to 2018 was notified by one Sri S.K.Purohit, Advocate-Returning Officer, Society in the local news paper called 'Suddimoola' vide Annexure-G. When things stood thus, on 26.04.2016, District Registrar stalled the process of election, thereafter he issued an endorsement on 27.04.2016 while holding that proposed election cannot be stalled. Consequently, on 28.04.2016/30.04.2016 election was held while electing the follows members:
Sl.No. Name Post
1 Chandrashekar Maski President
2 Shivasharanappa Patil Vice-President
3 Shivasharanappa Patil Secretary
13
4 Marigouda Karlakunti Joint-Secretary
5 Siddanagouda Executive Member
6 Basavaraj Shireddy Executive Member
7 Venkanagouda Bassapur Executive Member
8 Vishwanathreddy Executive Member
9 Rajashekar Advocate Executive Member
10 Shivalingappa Executive Member
8. The District Registrar has thereafter affirmed the election held on 24.08.2016/30.04.2016, by an endorsement dated:02.05.2016. By order dated:
13.05.2016, he proceeded to withdraw the order dated:
02.05.2016 affirming the election on the score that the same was issued due to certain typographical errors.
The said orders were subject matter of WP Nos.30023 and 30221-230 of 2016.
9. Shri.Veerana Gowda Maski filed the written statement in W.P. No.205546/2016 stating that writ petition is not maintainable and writ petition filed by S.R. Shet was an after thought and after lapse of so many months. He had questioned the validity of 14 2.5.2016 and 12.5.2016 orders which are not existing in the eye of law in view of subsequent development namely issuance of order dated 13.5.2016 of the District Registrar which is subject matter of W.P. No.205546/2016.
10. In this background, learned Single Judge proceeded to allow the petitions filed by Veerana Gouda Maski and others ( WP No.30023 & 30221-230/2016) while dismissing the writ petition of the S.R.Shet (WP No.205546/2016). Hence, these two appeals were preferred by S.R.Shet.
11. Learned counsel for the appellant - S.R.Shet vehemently contended that no documents have been placed on record to show that the Society consists of 138 of Members. Therefore, Society consists of 15 members only who were present and participated in the process of election and the dispute relating to members of Society is to be resolved before appropriate Forum, question of interference with order dated:13.5.2016 is arbitrary and illegal. District Registrar has no power to 15 interfere with the election procedure of the Society and if there is any dispute among the members of the Society, aggrieved members of the Society were required to agitate before the appropriate Forum. Appellant S.R.Shet has not been provided notice before passing any proceedings by the District Registrar. Section 25 of the Karnataka Societies Registration Act, 1960 do not provide the District Registrar to interfere with the election. Even reading of Sections 8, 9 and 26 of the Act, it was also submitted that there is no issuance of notice and there is no provisions of law to hold fresh election as directed on 12.04.2016 r/w 26.04.2016 of the District Registrar vide Annexure-F3 and H.1. In support of the appellant's contention, he relied on the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh and others vs. Sanjay Nagayach and others reported in (2013) 7 SCC 25 relating to extraneous material consideration by the District Registrar. Para Nos.35 to 37 of the said Judgment is reads as under:-
16
35. We are of the view that this situation has been created by the Joint Registrar and there is sufficient evidence to conclude that he was acting under extraneous influence and under dictation. A legally elected Board of Directors cannot be put out of the office in this manner by an illegal order. If the charges leveled against the Board of Directors, in the instant case, were serious, then the Joint Registrar would not have taken two-and-half years to pass the order of suppression. The State of Madhya Pradesh did not show the grace to accept the judgment of the Division Bench of the High Court and has brought this litigation to this court spending a huge amount of public money, a practice we strongly deprecate.
Registrar/Joint Registrar and external influence
36. Statutory functionaries like the Registrar/Joint Registrar of cooperative societies functioning under respective Cooperative Act must be above 17 suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Large number of cases are coming up before this Court and the High Courts in the country challenging the orders of supersession and many of them are being passed by statutory functionaries due to external influence ignoring the fact that they are ousting a democratically elected Board, the consequence of which is also grave because the members of the Board of Directors would also stand disqualified in standing for the succeeding election as well.
37. The Registrar/Joint Registrar, while exercising powers of supersession has to form an opinion and that opinion must be based on some objective criteria, which has nexus with the final decision. A statutory authority shall not act with pre-conceived notion and shall 18 not speak his masters' voice, because the information of opinion must be his own, not of somebody else in power, to achieve some ulterior motive. There may be situations where the Registrar/Joint Registrar are expected to act in the best interest of the society and its members, but in such situations, they have to act bona fide and within the four corners of the statute. In our view, the impugned order will not fall in that category.
12. He has also cited two decisions on the issue relating to filing of writ petition at a later point of time is permissible namely in the case of Bhartiya Seva Samaj Trust through President and another vs. Yogeshbhai Ambalal Patel and another reported in (2012) 9 SCC 310 in Para No.14 of the said Judgment is reads as under:-
14. It is a settled legal proposition that the Court should not set aside the order which appears to be illegal, if its effect is to revive another illegal order. It is for the reason that in such an eventuality the illegality would perpetuate and it 19 would put a premium to the underserving party/person. (Vide Gadde Venkateswara Rao v. Govt. of A.P. Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, Mallikarjuna Mudhagal Nagappa v. State of Karnataka. Chandra Singh v. State of Rajasthan and State of Uttaranchal v.
Ajit Singh Bhola.)
13. Hon'ble Supreme Court in the case of Gadde Venkateswara Rao, Vs. Government of Andhra Pradesh and others reported in AIR 1966 SC 828 at para Nos.16 and 17 held as under:
16. But there is another flaw in the order of the Government dated April 18, 1963, i.e., it made the order without giving an opportunity to the representatives of Dharmajigudem who were prejudicially affected by the said order. Learned counsel for the State said that the appellant could not be considered to be a party prejudicially affected by that order. But, as we have stated earlier, the appellant was the President of the Committee which 20 collected the amount, he was representing the village all through and he also deposited the prescribed amount with the Block Development officer. The Government should have, therefore, given notice either to him or to the Committee, which was representing the village all through for the purpose of securing the location of the Primary Health Centre in their village. The order made in derogation of the proviso to sub-s. (1) of s. 72 of the Act is also bad.
17. The result of the discussion may be stated thus : The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally 21 passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under s. 72 of the Act to review an order made under s. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
14. It was further contended that appellant's application for amendment of his writ petition was pending consideration as on the date of disposal of the writ petition. On this issue, learned Single Judge has 22 dealt in Para No.20 of the judgment dated 18.11.2016, which is not in order. Thus, learned Single Judge has not appreciated issues relating to proceedings. The District Registrar's action is without notice and so also without authority of law insofar as action prior to 13.05.2016. Hence, learned Single Judge order dated 18.11.2016 is liable to be set aside.
15. Per contra, learned counsel for respondent No.3 supported the order of the learned Single Judge. Appellant has not questioned the validity of election, endorsement dated 02.05.2016 and further proceedings r/w rules and regulations of the Society in particularly rule-VII and in view of these lacunas appeals have no merit.
16. Respondent No.3 in Writ Appeal Nos.200547-200551/2016 submitted that Society was registered on 30.12.1983. As on that day, 120 members were in the Society which consists patrons members, life members and ordinary members. In terms of Rule XIV, governing members were required to be elected. It 23 was further contended that in terms of R.T.I. Information received, the total members of the Society is
138. Among them, 5 were patrons, 129 are Life Members and 4 were ordinary members. To this effect, an affidavit has been filed by the District Registrar in the Writ petition.
17. It was further contended that there is no infirmity in the District Registrar's order since it is in terms of Section 25 of the Act. It was also contended that the District Registrar has no power to review his own order while withdrawing order dated 2.5.2016 on 13.5.2016. In support of the same, learned counsel for respondent No.3 relied on decisions in the case of Patil Narshi Thakershi and ors. vs. Pradyumansinghji Arjunsinghji reported in AIR 1970 SC 1273 in Para No.4 is reads as under:-
4. The first question that we have to consider is whether Mr.Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be 24 remembered that Mr.Mankodi was functioning as the delegate of the State Government. The order passed by Mr.Mankodi, in law amounted to a review of the order made by Saurashtra Government.
It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.
No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order.
The question whether the Government's order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored The Subordinate Tribunals have to carry out that order. 25
For this reason alone the order of Mr.Mankodi was liable to be set aside.
18. It was further contended that order dated 13.5.2016 is illegal and there is lack of jurisdiction which has been appreciated by the learned Single Judge in Para Nos.14 and 16. In support of lack of jurisdiction, learned counsel for respondent relied on decision in the case of T.R.K. Ramaswamy Servai and Ors. vs. The Board of Commissioners of the Hindu Religious Endowments reported in AIR 1951 MAD 473 in para No.13 is reads as under:-
13. If there was no temple in existence, does the prior order of the Board under Ex.R.1, preclude the petitioner from now contending that there was no temple in existence.
According to the learned District Judges, as the order under Ex.R.1, became final, it is not open to the petitioners to contend now that there is no temple in existence. The contention urged on behalf of the appellants is that the order was passed without jurisdiction and 26 that therefore it is a nullity. Is this contention well-founded? An act done by a Court or a quasi-judicial body without any power to do so is null and void. If a Court has no jurisdiction over the subject matter, it judgment is a nullity and does not require to be set aside. On the other hand, if a judicial body has jurisdiction over the subject matter and, in the exercise of that jurisdiction, decides a matter erroneously, that adjudication is not void but has to be avoided by an appropriate proceeding such as an appeal preferred against that judgment within the time permitted by law. The distinction, therefore, between the jurisdiction of a Court to try and determine a matter and the erroneous decision of a Court in the exercise of its admitted jurisdiction must be borne in mind. The line of demarcation between an error of judgment and the usurpation of power is that, in the former case, the decision is reversible by an appellate Court and could be thus avoided, while in the latter case, the judgment is an absolute nullity. The decision in 27 Mallikarjun v. Narhari, 25 Bom. 337:27 I.A.216, which is very often cited for the position that when the parties are before the Court and present to it a controversy, which the Court has an undoubted authority to decide, the Court has jurisdiction to decide rightly as well as wrongly falls under the category of a mere error of judgment. If the Court has no jurisdiction over the subject-matter of a suit or proceeding, that the parties cannot by their consent confer jurisdiction upon the Court and convert the proceeding into a proper judicial process was settled very early by the Privy Council in the well known case of Ledgard v. Bull, 9 ALL.191; 13 I.A.134 P.C., which was followed in the later case of Minakshi v.Subramnia, 11 Mad. 26:14 I.A. 160 P.C., Very often the jurisdiction of a Court or of a quasi-
judicial body depends upon the fulfillment of a condition or the
establishment of a collateral fact not touching the merits of the case. The power of a Collector to sell an estate under Bengal Act XI (11) of 1859 is dependent upon the condition that the 28 arrears of revenue existed. But if in fact no arrear of revenue was due on an estate, the Collector has no jurisdiction to sell the property and the sale is a nullity. The procedure prescribed by Bengal Act XI (11) of 1859 and Bengal Act VII (7) of 1868 to challenge such proceedings on the ground of irregularity or illegality in the sale proceedings would not preclude the person affected by the sale when no arrear has existed from challenging the sale in a civil Court; see Balkishendas v.Simpson, 25 Cal. 833:25 I.A. 151 P.C.. Sometimes, the jurisdiction of a Court or a quasi-judicial body is de-pendent on the establishment of collateral facts. A familiar example of such a case is the jurisdiction of the Revenue Courts to try suits under the Madras Estates Land Act. If the land is in an estate, certain suits have to be instituted only in the revenue Court. If, on the other hand, the land is not part of an estate, the ordinary civil Courts alone would have jurisdiction to entertain suits for relief in respect of such land. Very often, therefore, as a condition precedent for 29 the exercise of jurisdiction, Courts are called upon to decide the question whether the village in which the land is situate and in respect of which a suit was instituted was or was not an "estate". The decision of the question whether the village is an "estate" or not depends upon a consideration of facts to be proved by evidence, oral and documentary. For instance, in cases falling under Section 3 (2) (d), Estates Land Act, the Court has to consider the question whether the grant in a given case was of the whole village or not.
The decision of this question necessitates usually the consideration of the inam proceedings of 1860 to find out whether the grant was of the nature contemplated by Section 3 (2) (d). In such cases the decision of the Court on the question whether the village was an "estate" or not is a collateral fact, on the decision of which would depend the forum of the suit. In the case of, what one might call, jurisdictional facts a Court by a wrong decision upon such facts cannot give itself jurisdiction which it would not otherwise possess. If 30 a civil Court decides that the land is not an "estate", and if that decision is erroneous, the adjudication in the civil Court on the question of fact is not final and can be interfered by the High Court under Section 115, Civil P.C., as held in Atchayya v. Sri Seetharamachandra Rao, 39 Mad.. 195:A. I.R. 1915 Mad 1223. The point is also illustrated by the case of Bunbury v. Fuller, (1853) 9 Ex.111: (23 L.J.Ex.29), where at p. 140, Coleridge J. observed:
Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged? Contends that it arose in another hundred, this is clearly a collateral matter independent of the merits;
19. Further, in the case of H.K.Siddegowda and Another Vs. District Registrar and Registrar for District Societies, Mysore and Others reported in 2006 (2) KCCR 1120 wherein Section 25 of the Act has been interpreted in para Nos.7, 8 and 9.31
7. Section 25 power is a special power vested with the Registrar in the matter of proper functioning of the society. Section 25 (1)(c) provides for a power to the Registrar to require the governing body to call General Body Meeting or the society and in the event of the General Body declaring to do so, he himself has the power to summon the General Body Meeting. This would provide an implied power available to the Registrar for the purpose of direction to call a General Body Meeting or to call a General Body by itself. The argument of no enquiry with regard to the membership, if accepted would defeat the very object of Section 25(1) (c) of the Act. In fact, the learned Single Judge has ruled in para 6 of his order that if the argument of want of power is accepted, then it would result in destruction of the power available to the Registrar. Learned Single Judge, in our view has rightly ruled that if the Registrar wants to exercise his power under Section 25, it should be made known and declared as to who constitute the members of the General 32 Body. If there is no identity regarding the members if the General Body to whom the notice be issued, it is not possible for him to indicate the constitution of the General Body. When the issue itself is as to who constitutes the General Body, then necessarily he has to give a finding with regard to membership as well. These findings as contained in para 6 did not in anyway violate Section 25 of the Act. Learned Single Judge after noticing various aspects of the matter, rightly, in our view has chosen to hold that the argument of the petitioners have no legs to stand. We are in agreement with the findings of the learned Single Judge, particularly in the light of effective implementation of the powers available to him under Section 25 of the Act. This argument of the petitioner does not appeal to us.
8. Learned Counsel for the appellants however relies on a few judgments in support of his submissions.33
(1969) 2 SCC 187 is a case dealing with the provisions of the Bombay Land Revenue Code, 1879. In that case, the Court ruled that the Commissioner should not have gone into the question of the title. When the title of an occupant is disputed by any party, before the Collector or the Commissioner and the dispute is serious, the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent Court and not to decide the question of title himself against the occupant. This judgment is clearly distinguishable on facts.
9. The Registrar, after noticing the material facts has chosen to come to a conclusion that the admission of 51 members as members of the society has not been established. Learned Single Judge also notices that it is not shown to the Registrar that there has been any application submitted by 51 persons for admission as members of the society and that they are the valid members of the society. Learned Single Judge has accepted the findings of the 34 Registrar in the light of the powers available to the Registrar. The findings of the Registrar so accepted by the learned Single Judge in our view do not require any re-consideration in this appeal. The order of the Registrar is based on facts. The same cannot be interfered with in a Writ Petition under Article 226 of the Constitution of India. We therefore, agree with the learned Single Judge on this issue.
20. Further relied on the decision of the Hon'ble Supreme Court in the case of Advocates' Association, Bangalore vs. The District Registrar and Registrar of Societies, Bangalore Urban District and others reported in 2006 (4) Karnataka 526 in para No.26 is reads as under:-
It is no doubt true that as a matter of rule once the election process has been set in motion, the Court sitting under Article 226 of the Constitution shall not stay the said proceedings and leave the parties to get their rights adjudicated in a properly constituted 35 suit which are to be filed under the Act. This is not a case where this Court is exercising its power under Article 226 of the Constitution to stay the election process. Apparently that exercise has already been done by the Registrar. It is to be noticed that the Association is registered under the Karnataka Societies Registration Act, which would necessarily mean that it is amenable to the jurisdiction of the Registrar. The Registrar has prima facie found that holding of an election pursuant to calendar of events would be unjustifiable. He is prima facie of opinion that admission of certain members to the society is not in confirmity with the bye-laws of the association. When it is so, I am of the considered view that it is within the powers of the Registrar to postpone the eventuality. Of course this power will have to be exercised sparingly and only in an exceptional circumstances and not as a matter of course.
21. Appellant's counsel in reply submitted that the Society consists of 138 members have been vaguely 36 disputed. He has pointed out from Annexure R-9 which reveals 25 members only. It was also pointed out that during pendency of the present litigation, tenure of the Executive members of the Society has lapsed and the same is not disputed by the respondents.
22. Heard the learned counsel for the parties.
23. Questions for consideration in these appeals are as follows:
(i) Whether the District Registrar can interfere with the election proceedings/administration of the Society or not?
(ii) Whether the appellants are to be heard by the District Registrar before modifying the order dated 02.05.2016 on 13.05.2016 or not?
(iii) Whether disputed number of members of the Society could be gone into in Writ Petition or not?37
(iv) Whether the order of the learned Single Judge could be interfered in the present appeals or not?
(v) Whether issues in Writ Petitions survive in view of the fact that tenure of the existing executive committee has lapsed in the months of March-April 2019?
24. Learned Single Judge elaborately considered the power of the District Registrar to interfere with the election proceedings/administration of the society having regard to the language of the word "constituent". The definition of the "constituent" is not forth coming in the Rules and Regulations of the Society or Act, 1960. Therefore, a reading of the definition of the word "constituent" as per Oxford and Blacksmith Dictionaries are as follows:
Blacksmith: "A person who gives another the authority to act as a representative"
Oxford: "Having the power to appoint or elect".38
Therefore, District Registrar is competent to interfere with the administration of the Society. Even he is empowered to rectify the errors stated to have been committed in the order dated 02.05.2016 on 13.05.2016.
25. The District Registrar upheld the election stated to have been conducted by the appellants in his order dated 02.05.2016 which was modified on 13.05.2016 holding that election conducted by the appellants were not in accordance with law. In this regard, appellants need not be heard in the matter for the reasons that election to the Executive Committee was conducted without following due procedure, in particular, the Rules and Regulations of the society requires secret ballot, whereas appellants while conducting the election to the executive members of the society, mode of election was by raising hands of the members. Even assuming that appellants are given an opportunity of hearing before modification of the order dated 02.05.2016, appellants are not in a position to 39 apprise the District Registrar that election conducted by the appellants were in accordance with law and that election process nor conducted by secret ballot whereas it is on record that no secret ballot procedures have been adopted. Therefore, question of granting hearing/principle of natural justice before modifying the order dated 02.05.2016 on 13.05.2016 may not improve their position. Hon'ble Supreme Court time and again held that principle of natural justice cannot be upheld as a straight jacket formula. In a given case where even if opportunity is provided, such person cannot improve the things viz., beyond the records, under circumstances, question of granting opportunity of hearing may not be necessary. It would be an empty formality.
26. As is evident from the records, other than RTI information document which reveals 138 members, the other versions are that the members of the Society consisted of 15 only which are not supported by any documentary evidence. Similarly, at one point of time 40 total members have been shown as 23 as is evident from the notice dated 08.01.2012, stating that Annual General Meeting would be held on 22.10.2012 under the Chairmanship of one Sri Hampanagouda Badarti in which one of the agenda relates to holding of election for a period of 3 years commencing from 2012-13 wherein it has been shown that 13 members were present and proceedings have been approved by 13 members whereas on 22.02.2016 Annual General Meeting is stated to have been held in which 15 members were present. Thus, there is dispute relating to number of members in the society. RTI information furnished by the competent authority reveals that there are 138 members. If the appellants are of the view that only 15 members are part and parcel of the Society, in that event, they have not questioned the validity of the RTI information given by the competent authority that Society consists of 138 members. Even in the Writ Proceedings as well as in the present Writ Appeals, the appellants have not appraised this Court by producing valid/authenticated documents to show that there were 41 only 15 members in the Society so as to uphold the contention of the appellants. Writ Court cannot decide about the number of members in the Society. Therefore, both the appellants and respondents have to establish and determine the number of members of the Society for the purpose of holding election to the Executive Members of the Society before appropriate forum.
27. Appellants have not made out any grounds to interfere with the order of the learned Single Judge on both the counts that District Registrar has no authority to interfere with the administration of the Society. As is evident from the Rules and Regulations of the Society read with provision of the Act, 1960, District Registrar is the competent authority to interfere with the administration of the Society including the election proceedings with reference to the word, "constituent". Further, the appellant's contention that they have not been provided an opportunity of hearing while passing the order dated 13.05.2016, has been considered in the 42 preceding paragraphs. The cited decision by the appellants do not assist in the present case having regard to the factual aspects of the case on hand.
28. During the pendency of the present appeals, by virtue of the interim order, as an ad-interim measure the appellants were stated to have been continued as Executive Members. Their tenure completed in the months of March-April '19. Therefore, issue in the Writ relating to challenge to the order dated 13.05.2016 and other preceding orders, do not survive for consideration at this juncture. Hence, these appeals could be disposed of by the following:
ORDER
(i) The appellants have not made out a case so as to interfere with the order dated 18.11.2016 passed in Writ Petition Nos.30023 & 30221-230/2016 c/w 205546/2016 Accordingly, these appeals do not merit consideration. The aforesaid 43 appeals stand dismissed with no order as to costs.
(ii) In view of the later development that existing executive members tenure has lapsed in the months of March-April '19, both the appellants and contesting respondent's faction have to agitate their rights before the appropriate forum for the purpose of determining the number of members of the Society.
(iii) All pending applications stand disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE BS/brn