R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD WRIT APPEAL No.1760 OF 2019 (CS-EL-M) BETWEEN:
K.Veeranna S/o Late Kalappa Aged 59 years President JSS MVP Employees House Building Co-operative Society JSS Nagar, Mysore-570 029 ... Appellant (By Sri. D.R.Ravishankar, Advocate and Sri.Bharath Keshvamurthy, Advocate) AND:
1. The State of Karnataka Represented by its Secretary Department of Co-operative Society M.S.Building Bengaluru-560 001.
2. The Additional Registrar of Co-operative Societies Office of the Registrar of Co-operative Societies No.1, Ali Askar Road Bengaluru-560 052.
3. The Marketing Officer (Government) Office of the Assistant Registrar Of Co-operative Societies Mysore Sub-division Mysore-570 025.
4. JSS Mahavidyapeeta Employees House House building Co-operative Society JSS Nagar, Mysore-570 029. (Represented by its Director) 5. M.Gangadhar S/o N.B.Maligoppa Aged 52 years Director and Vice President 6. Shivakumara Swamy N.M. S/o Marularadhya Aged 48 years Director 7. Chandrashekar Achar S/o Late. Nanjundaswamy Aged 50 years Director 8. Rajanna J.G S/o Gurumallappa Aged 52 years Director 9. Mahadev S/o Late. Mallegowda Aged 50 years Director 10. Susheela Wife of K.R.Suresh Aged 54 years Director 11. Krishnakumar G.C S/o Chikkanayaka Aged 51 years Director 12. K.M.Nataraj S/o Late Mahadevappa Aged 52 years Director Respondents 5 to 12 are all Directors of JSS Mahavidyapeeta Employees House Building Co-operative Society JSS Nagar, Dr. Rajkumar Road Mysore-570 029. ... Respondents (By Sri.Uday Holla, Senior Counsel [Advocate General] Along with Sri. S.H. Prashanth, AGA for R1 & R2, Sri.Jayakumar S Patil, Senior Counsel Along with Sri. Devi Prasad Shetty, Advocate For R5 /to R12, R4 is served) This writ appeal is filed under Section 4 of the Karnataka High Court Act praying to set aside the orders passed by the learned single judge dated 30/05/2019 in WP No.48949/2018.
This writ appeal, coming on for orders, this day, CHIEF JUSTICE, delivered the following:
JUDGMENT The submissions of the learned counsel appearing for the parties were heard on the earlier occasion. As a notice to the learned Advocate General was not issued, a notice was ordered to be issued and accordingly, today, we have heard the learned Advocate General on behalf of the State Government.
2. In the writ petition filed before the learned Single Judge, apart from the prayer for quashing the order dated 17th October 2017 passed by the Additional Registrar of Co- operative Societies, the challenge was to the validity of sub-rule (11) of Rule 14-AKK of Karnataka Co-operative Societies Rules, 1960 (for short, ‘the said Rules’) on the ground that sub- rule (11) is ultra vires the provisions of the Karnataka Co- operative Societies Act, 1959 (for short, ‘the said Act’).
3. We must note here that the order passed by this Court on 7th June 2019 records that parties consented that the issue of validity of the said sub-rule shall be decided in the present appeal.
4. Coming to the facts of the case, the appellant was the Chairman of a Co-operative Society. On 3rd October 2018, a no confidence motion was submitted by the fifth to twelfth respondents. On the basis of the order dated 17th October 2018, notice of the meeting was issued on 25th October 2018 and that is why the writ petition was filed before the learned Single Judge seeking the aforesaid reliefs. The challenge in this appeal is to the order dated 30th May 2019 passed by the learned Single Judge. By the said order, the learned Single Judge directed an officer to conduct the meeting of the members for considering the motion of no confidence. It was directed that the result would be subject to the outcome of the writ petition. As a matter of fact, on the basis of the order passed by the learned Single Judge, motion of no confidence has been passed against the appellant. Therefore, in substance, the submissions are canvassed in this appeal only on the validity of the Rules.
5. With a view to appreciate the submissions made across the Bar, it will be necessary to quote Section 29-H of the said Act, which reads thus:
“29-H. Motion of no confidence against office bearer -. (1) A motion of no confidence against an office bearer may be moved only after two years of his assumption of office. In case, the motion of no confidence is once defeated, a fresh motion shall not be introduced within one year thereafter. No motion of no confidence shall be moved unless there is a request from not les than one-third of the elected members of the board of a Co-operative Society concerned.
(2) An office bearer of a Co-operative Society shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of two- third of the total number of elected directors of a Co-operative Society at a meeting specially convened for the purpose.
(3) The procedure for no confidence motion shall be as prescribed. “ (Underline supplied) We may also quote sub-rule (11) of Rule 14-AKK of the said Rules which is subject matter of challenge. It reads thus:
“(11) If the motion is carried, with the support of not less than 2/3rd of the elected members present in the meeting the authorised officer shall declare the result and draw up the proceedings accordingly and sign and handover a copy of the proceedings to the Chief Executive of the society and a copy to be displayed on the notice board of the society and communicate the same to the jurisdictional Registrar.”
(Underline supplied) 6. The submission of the learned counsels appearing for the appellant is that sub-rule (11) of Rule 14-AKK of the said Rules is ultra vires the provisions of sub-Section (2) of Section 29-H of the said Act and therefore, the outcome of the meeting held in accordance with sub-rule (11) will stand vitiated. His submission is that under sub-section (2) of Section 29-H, an office bearer of a co-operative Society shall be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by 2/3rd of the total number of elected directors. But sub-rule (11) provided that the requisite support required for passing of no confidence motion is 2/3rd of the elected members present in the meeting.
7. The learned Senior Counsel appearing for the contesting respondents has also made extensive submissions. His submission is that, in any case, Section will prevail over the Rules and the outcome of the motion of no confidence will depend on the question whether 2/3rd of total number of elected members have supported the motion. It is pointed out that Rule is a procedural rule.
8. We also heard learned Additional Government Advocate on the last date and the learned Advocate General today. They have supported the Rule and contended that there is nothing illegal or ultra vires in the said Rules.
9. We have given careful consideration to the submissions. The grounds on which a legislation can be challenged are well settled. When a subordinate legislation is challenged, additional ground is always available that a rule is inconsistent with the provisions of the Act under which the same is framed and it is ultra vires the provisions of the Act. As far as the approach of the Court dealing with such validity challenge is concerned, the same is set out by the Apex Court in the case of VINOY VISWAM vs. UNION OF INDIA1. To save a statute from being held ultra vires, the Court always has a power to read down a statutory provision. However, it is not permissible for the Court to add something to the a statute or to subtract something from a statute while reading down the provision.
10. Now coming to the case on hand, sub-section (2) of Section 29-H provided that an office bearer of a co-operative society shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence is passed by majority of 2/3rd of the total number of elected Directors in a meeting specially convened for considering the no confidence motion. Thus, the mandate of law is that such a resolution must be 1 (2017) 7 SCC 59 passed by a majority of 2/3rd of all the elected directors of the co-operative society in a meeting specially convened for that purpose. A perusal of sub-rule (11) suggests that even if motion is carried with the support of not less than 2/3rd of the elected members present in the meeting, the motion is passed. It suggests that even if the motion is not carried by 2/3rd of the total elected directors and if it is carried with the support of lesser number of elected directors constituting 2/3rd of the directors who are present at the meeting, the office bearer concerned shall be deemed to have vacated his office. Thus, on a plain reading, that part of sub-rule (11) which provides for motion being carried with the support of not les than 2/3rd of the elected members present is ultra vires the main provision of sub-section (2) of Section 29-H.
11. A perusal of Rule 14-AKK will show that a procedure has been laid down for dealing with no confidence motion. If the offending portion of sub-rule (11) starting from the word ‘with’ and ending with the word ‘meeting’, is held to be ultra vires, the remaining portion of the Rule will read thus:
“(11) If the motion is carried, the authorised officer shall declare the result and draw up the proceedings accordingly and sign and handover a copy of the proceedings to the Chief Executive of the society and a copy to be displayed on the notice board of the society and communicate the same to the jurisdictional Registrar.”
12. The words ‘if the motion is carried’ will naturally mean the motion being carried by majority of 2/3rd of the total number of elected directors as provided under sub-section (2). Therefore, if the aforesaid portion of sub-rule (11) starting from the word ‘with’ and ending with the word ‘meeting’ is struck- down, sub-rule (11) will remain consistent with sub-section (2) of Section 29-H. Therefore, if a motion is carried by 2/3rd of total number of elected directors, the authorized officer shall declare the results. The words ‘if the motion is carried’ will mean that the motion is carried in terms of sub-section (2) of Section 29-H. As there is no manner of doubt that the offending portion of sub-rule (11) which we have stated above is ultra vires the provisions of sub-section (2) of Section 29-H of the main Act, the said portion will have to be struck-down.
13. Now coming to the merits of the matter, we are informed that the result of the voting in the meeting has been kept in sealed cover. Now, the authorized officer will have to declare the said results in the light of this judgment and order.
14. Accordingly, the appeal must succeed and we pass the following order:
(i) The impugned order of the learned Single Judge is modified. We hold that the portion of sub-rule (11) of Rule 14- AKK starting from the word ‘with’ and ending with the word ‘meeting’ is hereby declared as ultra vires the provisions of the said Act and in particular sub-section (2) of Section 29-H and it is hereby struck-down;
(ii) We direct the authorized officer to declare the result of the meeting already held to consider no confidence motion against the appellant in accordance with law, within a period of one week from the date on which a copy of the judgment and order is available;
(iii) Appeal is partly allowed in the above terms;
(iv) Writ petition stands disposed of accordingly.
Pending applications do not survive and the same are accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE Cm/-