IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NOs.13938-13941/2019 C/W W.P. NOs.10867-10879/2019(CS-EL/M) IN W.P. NOs.13938-13941/2019:
BETWEEN:
1 . THE AGRICULTURIST PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD., NEAR KSRTC BUS STAND, P.B. ROAD DAVANGERE – 577 003 REPRESENTED BY ITS AUTHORIZED DIRECTOR SRI. K.R. SIRINIVAS.
2 . SRI. K.R. SRINIVAS S/O LATE K.H. RANGAPPA AGED ABOUT 45 YEARS DIRECTOR OF AGRICULTURISTS PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD., RESIDING AT 2739/2, 2ND MAIN 4TH CROSS, MCC ‘B’ BLOCK DAVANGERE - 577 002.
3 . SRI. P.R. SIDDAPPA S/O K.P. REVANA SIDDAPP AGED ABOUT 45 YEARS DIRECTOR OF AGRICULTURIST’S PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD., RESIDING AT KAHIPURA VILLAGE GOPANAL POST, DAVANGERE TALIK & DIST – 577 514.
4 . SMT. SOWBHAGYAVATHI K W/O HALESHAPPA AGED ABOUT 54 YEARS DIRECTOR OF AGRICULTURIST’S PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD., RESIDING AT 116/47, TRINATRA SADANA, KIRUVADI LAYOUT K.B. EXTENSION DAVANGERE -577 002.
5 . SMT. MANJULA C W/O SURENDRAPPA S AGED ABOUT 55 YEARS DIRECTOR OF AGRICULTURIST’S PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD RESIDING AT BASAPURA VILLAGE DAVANGERE TAUK & DIST – 577 001.
...PETITIONERS (BY SRI. JAYAKUMAR S PATIL SR. COUNSEL A/W SRI. A. MAHAMMED TAHIR, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S. BUILDING, BANGALORE – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2 . THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NO.1, ALI ASKER ROAD BANGALORE – 560 052.
3 . ADDITIONAL REGISTRAR/ELECTION OFFICER, CO-OPERATIVE SOCIETY NO.1, ALI ASKER RAOD BANGALORE – 560 052.
4 . THE DEPUTY REGISTRAR OF COOPERATIVE SOCIETIES DAVANGERE SUB-DIVISION DAVANGERE – 577 002.
5 . THE ASSISTANT REGISTRAR OF COOPERATIVE DAVANGERE SUB-DIVISION DAVANGERE – 577 002.
6 . THE STATE CO-OPERATIVE ELECTION AUTHORITY, 3RD FLOOR, SHANTHI NAGAR, T.T.M.C, ‘A’ BLOCK SHANTHI NAGAR, BANGALORE - 27 REPRESENTED BY ITS SECRETARY.
7 . RETURNING OFFICER AGRICULTURISTS PROCESSING INDUSTRIAL & COMMERCIAL CO-OP SOCIETY LTD., DAVANGERE AND CO-OPERATIVE DEVELOPMENT OFFICER, OFFICE OF DEPUTY REGISTRAR CO-OP SOCIETY DAVANGERE – 577 002.
8 . SCRUTINY OFFICER & CO-OPERATIVE DEVELOPMENT OFFICER OFFICE OF DEPUTY REGISTRAR CO-OP SOCIETY, DAVANGERE – 577 002.
...RESPONDENTS (BY SMT. KAVITHA H.C, HCGP FOR R-1 TO R-5 AND R-7 & R-8;
SRI. G.V. SHASHI KUMAR, ADVOCATE FOR R-6; SRI. MAHESH R UPPIN, ADVOCATE FOR IMPLEADING APPLICANTS IN IA 2/19) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO STRIKE DOWN JPROVISIONS OF SECTION 28A(5) AS BEING UNCONSTITUTIONAL AND UNWORKABLE AND DIRECT THE RESPONDENTS AND ITS OFFICERS NOT TO APPOINT “ADMINISTRATOR” AND NOT TO ASSUME CHARGE AS ADMINISTRATOR OF THE 1ST PETITIONER CO-OPERATIVE SOCIETY BY INVOKING PROVISIONS OF SECTION 28A(5) OF THE ACT.
IN W.P. NOs. 10867-10879/2019: BETWEEN:
1 . SRI. A.H. KUBERAPPA S/O A. HANUMANATHAPPA AGED ABOUT 57 YEARS RESIDING AT 630/1, 3RD MAIN 16TH CROSS, K.T.J. NAGAR DAVANAGERE – 577 004.
2 . SRI. LOKESH MADIWALA M.L S/O HALAPPA AGED ABOUT 28 YEARS RESIDING AT 708/1A 1ST MAIN, 10TH CROSS K.B. EXTENSION DAVANAGERE – 577 002.
3 . SRI. VEERENDRACHAARI S/O NIRANJANA MURTHY AGED ABOUT 48 YEARS R/AT KURKI POST DAVANAGERE TALUK DAVANAGERE -577 514.
4 . SRI. K.H. PRABHU S/O K.H. BHARMAPPA AGED ABOUT 62 YEARS RESIDING AT NO.145/142 10TH CROSS, SAUJANEYA NILAYA, TEACHERS COLONY VUDYANAGAR DAVANAGERE – 577 005 SENIOR CITIZEN CLAIMED.
5 . SRI. S.J. SRINIVASA S/O T.S.M. JAYAPPA AGED ABOUT 40 YEARS RESIDING AT THURCHUGATTE BELAVANNUR POST DAVANAGERE TALUK – 577 002.
6 . SRI. H.E. RUDRAMANI S/O H. ESHWARAPPA AGED ABOUT 38 YEARS R/AT HEBBAL POST DAVANAGERE TALUK – 577 556.
7 . SRI. K.R. SHRIDHAR S/O K.H. RANGAPPA AGED ABOUT 50 YEARS RESIDING AT NO.2739 1ST FLOOR, 2ND MAIN 5TH & 6TH CROSS, MCCB BLOCK DAVANAGERE – 577 004.
8 . SRI. R.P. SHIVANAGOWDA S/O PATEL RUDRAPPA AGED ABOUT 78 YEARS RESIDING AT RAMAGONDANA HALLI, DAVANAGERE TALUK – 577 514 SENIOR CITIZEN NOT CLAIMED.
9 . SRI. R.G. SURESH KUMAR S/O R.P. PURUSHANKARAPPA AGED ABOUT 52 YEARS RESIDING AT RAMPURA KADAJJI POST DAVANAGERE TALUK – 577 002.
10 . SRI. PRAVEEN S.H S/O S. HALAPPA AGED ABOUT 31 YEARS RESIDING AT NO.116/47 THRINETRA, SODANA KIRUVODI LAYOUT K.B. EXTENSION DAVANAGERE – 577 002.
11 . SMT. VIMALAMMA W/O H.P. PRABHU AGED ABOUT 65 YEARS RESIDING AT HEBBAL DAVANAGERE TALUK NO.1961/A7, 4TH CROSS TAVALABOLU NAGAR BABAUJI VIDYA NAGAR DAVANAGERE – 577 005 SENIOR CITIZEN NOT CLAIMED.
12 . SMT. PAVITHRA B W/O B. ANANDA AGED ABOUT 47 YEARS RESIDING AT NO.2463/1B 10TH MAIN, DHYAMLAMBA NILAYA, NEAR BAKKASWARE HIGH SCHOOL, NEAR MCC "B"
BLOCK, DAVANAGERE – 577 004.
13 . SRI. B.T. VENKATESH S/O THIMAPPA AGED ABOUT 34 YEARS RESIDING AT MODENAHALLI AT POST, DAVANAGERE TALUK – 577 556.
...PETITIONERS (BY SRI. JAYAKUMAR S PATIL,SR.ADV., A/W SRI. MAHAMMED TAHIR , ADV.,) AND:
1 . THE STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S. BUILDING, BANGALORE – 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2 . THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NO.1, ALI ASKER ROAD BANGALORE – 560 052.
3 . ADDITIONAL REGISTRAR/ELECTION OFFICER CO-OPERATIVE SOCIETY NO.1, ALI ASKER ROAD BANGALORE – 560 052.
4 . THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES DAVANAGERE SUB-DIVISION DAVANAGERE – 577 002.
5 . THE ASSISTANT REGISTRAR OF CO-OPERATIVE DAVANAGERE SUB-DIVISION DAVANAGERE – 577 002.
6 . THE STATE CO-OPETATIVE ELECTION AUTHORITY 3RD FLOOR, SHANTHI NAGAR T.T.M.C "A" BLOCK, SHANTHI NAGAR, BANGALORE - 27 REPRESENTED BY ITS SECRETARY.
7 . SMT MANJULA S RETURNING OFFICER AGRICULTURIST’S PROCESSING INDUSTRIAL AND COMMERCIAL CO-OP SOCIETY LTD., DAVANAGERE AND CO-OPERATIVE DEVELOPMENT OFFICER, OFFICE OF DEPUTY REGISTRAR CO-OP SOCIETY DAVANAGERE – 577 002.
8 . SMT. BHAGYASHREE S PATEL SCRUTINY OFFICER & CO-OPERATIVE DEVELOPMENT OFFICER OFFICE OF DEPUTY REGISTRAR CO-OP SOCIETY, DAVANAGERE – 577 002.
9 . THE AGRICULTURIST’S PROCESSING INDUSTRIAL AND COMMERCIAL CO-OP SOCIETY LTD., NEAR KSRTC BUS STAND, P.B. ROAD DAVANAGERE – 577 003 REPRESENTED BY ITS SECRETARY.
...RESPONDENTS (BY SMT KAVITHA H.C., HCGP FOR R-1 TO R-5 SRI G.V.SHASHI KUMAR, ADV FOR R-6 R-7 TO R-9 SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:22.02.2019 PASSED BY THE R-3 AT ANNEXURE-F AND PUBLICATION DATED:23.02.2019 ISSUED BY THE R-7 AT ANNEXURE-G.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These two writ petitions revolve around the order dated 22.02.2019 passed by third respondent postponing the election to be held to the Board of Directors of Agriculturists Processing Industrial and Commercial Co-operative Society Limited (for short ‘society’) and appointment of Administrator to the said society.
2. 9th respondent – society is a society registered under Karnataka Co-operative Societies Act, 1959 (for short ‘Act’) and term of Board of Directors elected on 30.04.2014 was coming to an end on 29.03.2019. Voters list finalized by 9th respondent – society was furnished to 8th respondent which was approved and forwarded to 9th respondent – society by communication dated 09.02.2019 (Annexure-C). Calendar of events for conducting election to the Board of Directors of 9th respondent – society came to be issued on 05.02.2019 (Annexure-D) by 7th respondent and petitioners are said to have filed their nomination under the respective categories notified as per calendar of events. 7th respondent having scrutinized the nomination papers submitted by candidates, published the list of nominated candidates. Petitioners-11 and 12 have filed their nomination under the category of ‘Women’, whereas petitioner No.13 filed his nomination under the category ‘Scheduled Caste’ and petitioners-4 to 9 have filed their nomination under “General” category as per the list published by the returning officer – Annexure-E. Since nomination filed by petitioner Nos.2, 3 and 1 under the category of ‘BCM-A’ and ‘Scheduled Tribe’, as there were no other candidates, they were declared elected as uncontested on 18.02.2019 (Annexure-E2).
3. When this was the factual scenario, third respondent by communication dated 22.02.2019 (Annexure-F) directed 7th respondent to postpone the election of the society till further orders on the ground that final list of voters scrutinised by Returning Officer had not been approved by it. It was also intimated thereunder that final list of voters prepared was not in compliance with the amended provisions of the Act namely, under Sections 20(2)(a-iv) and 20(2)(a-v) of the Act. In the light of said direction issued by third respondent to seventh respondent, notification came to be issued on 23.02.2019 (Annexure-G) postponing the election to 9th respondent - society indefinitely. Hence, W.P.Nos.10867-10879/2019 have been filed by petitioners.
4. Writ Petition Nos.13938-13941/2019 have been filed by the Directors of said society for striking down Section 28A(5) of the Act as being unconstitutional and not workable; with a further prayer of a writ of mandamus to respondents not to appoint “Administrator” under Section 28A(5) of the Act to 9th respondent - society; and also for a further direction to the Election Authority to hold election to the society from the stage where it was interrupted by respondents-3 & 7.
5. It is now submitted by Sri Jayakumar S Patil, learned Senior counsel appearing for petitioners that during pendency of present writ petitions, an administrator has been appointed for a period of 6 months and on expiry of said period, term of the administrator has been extended by appointing a different administrator.
6. It is the contention of Sri.Jayakumar S Patil, learned senior counsel appearing for petitioners that impugned order/communication dated 22.02.2019 passed by third respondent directing 7th respondent to postpone the election is without authority of law and there is no provision under the Act which enables the authorities to stall the election process which has already been set in motion. He would also contend that in the light of Administrator having been appointed and by virtue of elections having been stalled, he prays for suitable direction being issued to conclude the proceedings which has been stalled.
7. Per contra, Smt.Kavita H.C., learned HCGP would support the action of respondents-3 & 7 and contends that voters list furnished by the society, was contrary to the statutory provisions which could not have been accepted or approved, as such, entire election process is flawed. Hence, after noticing the said illegality, third respondent has issued direction to 7th respondent to postpone the election and there is no infirmity in the said process and she prays for dismissal of writ petitions. She would also bring to the notice of this court that subsequent events that has taken place ie., Administrator having called for general body meeting of members and in the said general body meeting, resolution having been passed to dissolve the society at the behest and on behalf of members who attended the general body as a ground for dismissal of these writ petitions.
8. Sri Mahesh Uppin, learned Advocate who is appearing for impleading applicants, in support of interlocutory application (I.A.No.2/2019 in W.P.Nos.13938-13941/2019) would contend that applicants are members of the society and no useful purpose would be served in conducting election to the society since interest of the members are not being espoused by the Board of Directors and as such, conducting of election to the 9th respondent – society would be an exercise in futility and petitioners are seeking for conducting of elections to 9th respondent – society with sole purpose of sending representative of the society to vote at the elections being held to Federal society or Apex society and for said purpose, 9th respondent – society need not be kept alive when members have already resolved or decided to dissolve 9th respondent – society. Hence, he prays for allowing the application and prays for dismissal of the writ petitions. He would also vehemently contend that 9th respondent - society has become totally dysfunctional and as such, conducting of election to the said society would not be required.
9. Sri Shashi Kumar, learned Advocate appearing for State Co-operative Election Authority (6th respondent in W.P.Nos.13938-13941/2019) would submit that once election to a co-operative society is set into motion, it cannot be interjected except under the contingencies prescribed under rule 14-H to 14-J of the Karnataka Co-operative Societies Rules, 1960 (for short ‘Rules’). He prays for suitable orders being passed in the present writ petitions.
10. Having heard the learned Advocates appearing for parties and on perusal of records, it requires to be noticed at the first instance that impleading applicants are neither necessary nor proper parties to the present proceedings. In the present writ petitions, Directors of the society as well as candidates who have filed nomination pursuant to calendar of events declared by 7th respondent are before this court with a prayer to conclude the election process to 9th respondent – society. Impleading applicants as members of 9th respondent – society have any grievance with regard to either functioning of the society or mismanagement of the society or improper functioning of the society as claimed by them, will have to redress their grievance by raising a dispute in that regard by filing appropriate petition under Section 70 of the Act. It is also not their case that appropriate Government or Registrar of co-operative societies and his subordinates have not taken steps redressing grievance. As such, this court is of the considered view that impleading applicants are neither necessary nor parties to these writ petitions. As such, impleading application filed is liable to be dismissed.
11. Now turning my attention back to the core issue viz., “whether third respondent could have issued direction to 7th respondent stalling the election process which had been set into motion, answer will have to be necessarily in the negative for the simple reason that when process of election has been set into motion by the State Co-operative Election Authority, said authority alone has got jurisdiction to stop or stall the election that too, in the contingencies that may arise as indicated under Rule 14-H to 14-J. Contingencies indicated under these rules would clearly disclose as to when there can be postponement or adjournment of a poll or whether fresh poll can be held including countermanding of a election. Contingencies so prescribed are clear and specific. If contingencies prescribed thereunder are absent, authority of the co-operative election authority to postpone election would also be unavailable. In this background, when the impugned order/communication dated 22.02.2019 (Annexure-F) (in W.P.No.10867-
10879/2019) is perused, it would clearly indicate that postponement of election has been ordered by third respondent on the ground that there is irregularity in the preparation of voters list.
Definitely this ground is untenable even to the Election Authority for postponing or countermanding election. That apart, Registrar of the co-operative Societies or his subordinate officers under the Act do not have any power or authority to postpone the elections as undertaken under the impugned communication in the instant case that too, on the ground of irregularity in the voters list. As such, impugned communication dated 22.02.2019 forwarded by third respondent to 7th respondent for postponing the elections declared to 9th respondent – society has to be necessarily held as bad in law and without authority of law.
12. In a democratic process, when the process of election of a society is set in to motion, it cannot be interjected by the authorities to their whims and fancies and on grounds alien to the statutory power. As already observed herein supra, under Rules 14-H to 14-J of the Rules, Election Authority alone has power for postponement of election and none else. As such, exercise of jurisdiction by third respondent directing 7th respondent to postpone the election is without authority of law. When election to 9th respondent – society has been commenced by issuance of calendar of events, same has to be taken to its logical end. As such, appropriate directions deserves to be issued in this regard and same is issued herein below.
12. Insofar as W.P.Nos. 13938-13941/2019 are concerned, issue regarding constitutional validity of Section 28A(5) of the Act is not gone into as the Administrator to 9th respondent – society having been appointed on account of postponement of election to the 9th respondent – society. On account of order postponing election to 9th respondent – society having been held as unsustainable in law, consequential steps taken by respondent – authorities in appointing an Administrator to said society and extending such appointment or conducting of any general body meeting pursuant to same by the Administrator would have to be necessarily held as without authority of law and non-est.
13. For the reasons aforestated, I proceed to pass the following:
ORDER (i) W.P.Nos.13938-13941/2019 and 10867-10879/2019 are allowed.
(ii) Communication dated 22.02.2019 and publication dated 23.02.2019 (Annexures-F & G in W.P.Nos. 10867-10879/2010 respectively) issued by respondents-3 and 7 respectively are quashed.
(iii) A writ of mandamus is issued to 7th respondent to complete the process of election to 9th respondent – society as per calendar of events (Annexure-D) from the stage it was stopped namely, by conducting polling by notifying the date of election which shall not be less than 15 days from the date of such notice and said notice shall be published not only on the notice Board of the society, but also in any one Vernacular Kannada newspaper.
(iv) All further steps taken by the Administrator pursuant to impugned communications are held as non est in law.
(v) It is needless to state that if any voters list has been published subsequent to commencement of the election process by disqualifying any member on the ground of disqualification having been earned by them under Section 20(2)(a-iv) or 20(2)(a-v) of the Act, such disqualification would not come in the way of such of those members to participate and vote in the said polling being held for the 9th respondent – society now.
SD/- JUDGE *sp