IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NOS.47080-81/2018 C/W.
WRIT PETITION NO.35529/2018(CS-EL/M) IN W.P.Nos.47080-81/2018 BETWEEN:
1. GUTTURU MILK PRODUCERS CO-OPERATIVE SOCIETIES CHINTAMANI TQ. CHIKKABALAPURA DISTRICT REPRESENTED BY ITS PRESIDENT 2. GUTTURU MILK PRODUCERS CO-OPERATIVE SOCIETIES CHINTAMANI TQ. CHIKKABALAPURA DISTRICT REPRESENTED BY ITS INCHARGE SECRETARY …PETITIONERS (BY SRI.DEVI PRASAD SHETTY, ADV.,) AND:
1. STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S.BUILDING BANGALORE – 560 001 THE PRINCIPAL SECRETARY 2. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES / DISTRICT ELECTION OFFICER CHIKKABALAPURA CHIKKABALAPURA DISTRICT – 560 052.
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES CHIKKABALAPURA DIVISION CHIKKABALAPURA – 560 052.
4. THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, SHANTHI NAGAR T.T.M.C. ‘A’ BLOCK SHANTHINAGAR BANGALORE – 27 REPRESENTED BY ITS SECRETARY.
5. VASUDEV SENIOR AUDITOR APPOINTED AS ADMINISTRATOR SIDLAGATTA TQ.
CHIKKABALAPUR DISTRICT – 560 052.
... RESPONDENTS (BY SMT.KAVITHA H.C., HCGP FOR R1 – R3, SRI.SHASHI KUMAR, ADV. ON BEHALF OF SRI.M.KESHAV REDDY, ADV. FOR R4; SRI.VASUDEV, RESPONDENT -5 -PARTY-IN-PERSON) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 ANDN 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER VIDE ANNEXURE-L DTD 27.08.2018 PASSED BY THE R-3 AND QUASH THE VIDE ANNEXURE-M PASSED BY THE R-5 AND ETC., IN W.P.No.35529/2018 BETWEEN:
1. GUTTURU MILK PRODUCERS CO-OPERATIVE SOCIETIES CHINTAMANI TQ. CHIKKABALAPURA DISTRICT REPRESENTED BY ITS PRESIDENT 2. GUTTURU MILK PRODUCERS CO-OPERATIVE SOCIETIES CHINTAMANI TQ. CHIKKABALAPURA DISTRICT REPRESENTED BY ITS INCHARGE SECRETARY …PETITIONERS (BY SRI.DEVI PRASAD SHETTY, ADV.,) AND:
1. STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S.BUILDING BANGALORE – 560 001 THE PRINCIPAL SECRETARY 2. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES CHIKKABALAPURA CHIKKABALAPURA DISTRICT BANGALORE - 560 052.
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES CHIKKABALAPURA DIVISION CHIKKABALAPURA – 560 052.
4. THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, SHANTHI NAGAR T.T.M.C. ‘A’ BLOCK SHANTHINAGAR BANGALORE – 27 REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SMT.KAVITHA H.C., HCGP FOR R1 – R3, SRI.SHASHI KUMAR ON BEHALF OF SRI.M.KESHAV REDDY, ADVS., FOR R4, SRI.N.R.NAIK, ADV., FOR R5) THIS WRIT PETITION ARE FILED UNDER ARTICLES 226 ANDN 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-F DATED 26.07.2018 AND QUASH ANNEXURE-G DATED 06.08.2018 AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is a Society registered under the Karnataka Co-operative Societies Act, 1959 (for short ‘Act’) and had conducted elections to its Board of Managing Committee in the year 2013 for a period of 5 years and the term of said Board came to an end during 2018. One Sri.Bayanna, who was the Secretary of petitioner - Society resigned from his post for personal reasons vide his resignation letter dated 05.06.2018 – Annexure-‘A’ and by resolution dated 20.06.2018, petitioner – Society accepted the resignation letter of said Bayanna and in the same meeting appointed Sri S.Ashok, as in-charge Secretary of the Society. The voters / Members list which had been forwarded by petitioner – Society to second respondent came to be approved and subsequently, second respondent on 26.07.2018 (Annexure-‘F’) cancelled the said approval even without issuing notice to the petitioners on the ground that the then Secretary (Sri.Bayanna) who had resigned had submitted a representation pointing out certain discrepancies in the voters / Members list and as such, by communication dated 26.07.2018 (Annexure-‘F’), second respondent cancelled the approval accorded to the voters list. Thereafter, third respondent, by communication dated 06.08.2019 – Annexure-‘G’ addressed to the second respondent, has directed for an enquiry being held in relation to voters list and also to enquire regarding appointment of new Secretary as well as resignation of previous Secretary. These two communications came to be challenged by the petitioner – Society in W.P.No.35529/2018 and Co-ordinate Bench by an order dated 18.08.2018 has stayed the same.
2. In the meanwhile, third respondent by an order dated 27.08.2018 appointed Sri.Vasudev, as the Administrator of the petitioner – Society in exercise of the powers vested under Section 28A (5) of the Act which has been challenged by petitioners in W.P.Nos.47080-81/2018. Hence, these two petitions are listed together, heard and disposed of by this common order.
3. I.A.2/2019 had been filed by the applicant – Sri Bayanna contending that he was the Secretary of second petitioner – society. Co-ordinate Bench of this Court by order dated 03.05.2019 had allowed the said application and ordered for applicant being brought on record as fifth respondent. Petitioner has not carried out the amendment and as such, order of amendment has got spent itself by virtue of Order 6 Rule 18 CPC. Even otherwise, there is no representation on behalf of impleading applicant though name of learned counsel appearing on his behalf has been printed in the cause list. Further, it is open for the impleading applicant to resolve his dispute with second petitioner – society in the manner known to law and no opinion is expressed in that regard.
4. It is the contention of Sri.Devi Prasad Shetty, learned counsel appearing for petitioners that second and third respondents ought not to have entertained the representation of the erstwhile Secretary – Bayanna, who had complained about alleged irregularities / illegalities in the voters / Members list and his grievance if any, in that regard was to raise a dispute under Section 70 of the Act and on the basis of the representation submitted by the erstwhile Secretary of the petitioner - Society, neither second respondent nor third respondent could have entertained the same and stalled the elections as per voters list submitted to second respondent which had been approved and as such, second respondent could not have cancelled the voters list by impugned communication dated 26.07.2018 Annexure-‘F’.
5. Per contra, learned High Court Government Pleader appearing for second and third respondents in both the writ petitions would contend that there being a serious dispute with regard to the voters list, same has to be enquired and only on such enquiry being held, further steps to conduct elections could be undertaken. She further elaborates her submission by contending that it is this factual scenario appropriate Government was perforced to appoint an Administrator as per order dated 27.08.2018 (Annexure-‘L’) and after voters list is rectified or set right, elections to the petitioner – Society would be held in accordance with the Act and Rules made thereunder.
6. Sri.Shashikumar, learned counsel appearing for fourth respondent in both the petitions would submit that role of fourth respondent would come into action only after declaration of voters list and Returning Officer being appointed and as such, he prays for suitable orders being passed in that regard.
7. Having heard learned counsel appearing for parties and after bestowing my careful and anxious consideration to rival contentions made at the bar, it would emerge from the records that undisputedly the voters list which was submitted by petitioners has been approved by the second respondent. However, at the behest of erstwhile Secretary – Bayanna, second respondent seems to have raised a doubt with regard to authenticity of the voters list submitted by petitioners and as such, second respondent has withdrawn the approval so granted to the voters list by communication dated 26.07.2018 (Annexure-‘F’). If at all, applicant had any grievance to the said Members / voters list he had to submit a representation or complaint to the second respondent and his grievance to the voters list if any, was elsewhere i.e., he ought to have raised a dispute before Competent Authority, if he was otherwise entitled to. But on the strength of complaint or representation submitted by an erstwhile Secretary who had resigned from his post, as it is prima facie evident from the resolution of the petitioner – Society as per Annexure-‘B’ (in W.P.No.35529/2018), second respondent could not have entertained his complaint to the voters – Members list.
8. Be that as it may. On the basis of the said purported representation / complaint submitted by erstwhile Secretary, the communication dated 26.07.2018 (Annexure-‘F’) withdrawing the approval granted to the voters list came to be issued and third respondent by communication dated 06.08.2018 addressed to the second respondent has directed an enquiry being held with regard to the voters list. These two communications have been stayed by the Co-ordinate Bench on 18.08.2018. When this was the factual position, an Administrator came to be appointed to the petitioner – Society on 27.08.2018 –Annexure-‘L’ appointing one Sri.Vasudev (5th respondent in W.P.Nos.47080-81/2018 ) for a period of three months and perusal of the said order of appointment of Administrator would disclose that he was required to complete the process of conducting elections and had to handover Management of the Society to the elected body within a period of three months. However, same had not been done and in fact, he has continued as Administrator even though period of appointment has not been extended by the Government.
9. Learned High Court Government Pleader would fairly submit before this Court that period of three months having expired, appointment has not been extended. In that view of the matter, Administrator who is said to be in control of the Administration of petitioner – Society is required to complete the process of conducting of election to the petitioner’s – Society and the very fact of term of the Administrator having expired, he cannot continue as such.
10. In the light of the aforestated discussions, I proceed to pass the following:-
ORDER 1. Writ petitions are allowed.
2. Communication dated 26.07.2018 – Annexure-‘F’ passed by second respondent as well as communication dated 06.08.2018 – Annexure-‘G’ passed by third respondent in W.P.No.35529/2018 is hereby quashed.
3. In the light of period of three months indicated in the order dated 27.08.2018– Annexure – ‘L’ having expired, question of quashing the same does not arise. However, fifth respondent - Administrator is hereby directed to conduct and complete the process of holding election to the petitioner’s – Society by taking into consideration the voters list which had been filed by petitioner – Society as per Annexure-‘E’ by conducting the election expeditiously and at any rate within an outer limit of three months from today, for which, fourth respondent shall also take steps to conclude the elections in accordance with law.
` SD/- JUDGE VMB