IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NOs.31906-31912/2019 (CS-RES) BETWEEN:
1. SANJEEV KUMAR V RAYABHAGI S/O VENKUSA G RAIBAGH AGED ABOUT 51 YEARS.
2. KUMAR SELVAN P S/O M. POOSWAMY AGED ABOUT 52 YEARS.
3. GOPINATH B.S S/O SUNDARAMURTHY A.M AGED ABOUT 50 YEARS DIRECTOR.
4. AMRUTHRAJ K.M AGED ABOUT 51 YEARS S/O LATE K. MUNISWAMY.
5. YELLAPPA DYAMANNAVAR S/O DEVENDRAPPA DYAMANAVAR AGED ABOUT 38 YEARS.
6. ANITHA R ALVA D/O Y.A. SHETTY AGED ABOUT 63 YEARS.
7. BYREGOWDA B S/O PAPANNA AGED ABOUT 74 YEARS.
ALL ARE DIRECTORS OF BHARATH ELECTRONCIS HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., 1ST FLOOR B.E. CO-OPERATIVE SOCIETY LTD., JALAHALLI, BENGALURU - 560 013.
... PETITIONERS (BY SRI. JAYAKUMAR S PATIL, SR. COUNSEL A/W SRI. JAI PRAKASH REDDY M, ADVOCATE) AND:
1. ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES ALI ASKAR ROAD BENGALURU - 560 001.
2. THE JOINT REGISTRAR OD CO-OPERATIVE SOCIEITES BENGALURU RANGE SAHAKARA SOUDHA, NO.146, 3RD FLOOR 3RD MAIN ROAD, 8TH CROSS MARGOSA ROAD, MALLESHWARAM BENGALURU - 560 003.
3. BHARATH ELECTRONICS HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., 1ST FLOOR, B.E. CO-OPERATIVE SOCIETY LTD., JALAHALLI BENGALURU - 560 013 BY ITS SECRETARY.
4. ANNADORAI K S/O LATE KUPPUSWAMY AGED MAJOR R/O NO.16, AKSHAYA NILAYA NEAR GANGAMMA TEMPLE RAMACHANDRAPURA BENGALURU - 560 013.
... RESPONDENTS (BY SMT. KAVITHA H.C, HCGP FOR R-1 & R-2; V/O DATED:13.08.2019 NOTICE TO R-3 IS DISPENSED WITH;
SRI. M. VEERABHADRAIAH, ADVOCATE FOR C/R-4) THESE W.Ps. ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:01.07.2019 VIDE ANNX-J PASSED BY THE R-1, QUASH THE ORDERS PASSED BY THE R-2 VIDE ANNX-H1 TO H7 DATED:24.06.2017 AND QUASH THE ORDER DATED:24.06.2017 PASSED BY THE R-2 VIDE ANNX-K.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed in preliminary hearing by consent to learned Advocates appearing for parties it is taken up for final disposal.
2. Petitioners have sought for the following reliefs:
“(a) Issue a writ in the nature of certiorari or any other appropriate writ or order quashing the order dated 01-07-2019 in Appeal No.ANI (H&O) D2/DAP/01/2019-
20 vide Annexure-J passed by respondent No.1.
(b) Issue a writ in the nature of certiorari or any other appropriate writ or order quashing the orders in Dispute No.JRB/DISPUTE/29-C/02/2019-20 (7), Dispute No.JRB/DISPUTE/29-
C/02/2019-20(4). Dispute No.JRB/ DISPUTE/29-C/02/2019-20 (6), Dispute No.JRB/DISPUTE/29-C/ 02/ 2019-20 (9), Dispute No.JRB/ DISPUTE/29- C/02/2019-20 (10), Dispute No.JRB/DISPUTE/29-C/ 02/ 2019-20 (12), Dispute No.JRB/DISPUTE/29- C/02/2019-20 (3), passed by respondent No.2 vide Annexure-H1 to H7 dated 24.06.2019.
(c) Issue a writ in the nature of certiorari or any other appropriate writ or order quashing the order dated 24-06-2019 in No.JRB/A.Mum.Ra/04/2019-20 passed by respondent No.2 vide Annexure-K.
(d) Issue a writ in the nature of mandamus Directing the respondent No.2 to nominate his nominee for appointment of the Chief Executive of the respondent No.3 society”
3. Petitioners came to be elected as members of the managing committee of third respondent-Society in the elections held on 01.09.2018. The erstwhile managing committee of third respondent-Society by virtue of powers vested in it is said to have appointed one Sri. K.R. Srikanth as secretary of the Society who continued as such till 03.10.2018. A resolution is said have been passed on 03.10.2018 by the members of the managing committee directing one of its director Smt. Anitha R. Alva (6th petitioner herein) to carryout the function as in-charge secretary on honorary basis and not as Chief executive officer. Hence, it is contended by petitioners that temporary arrangement so made is not in violation of any of the provisions of The Karnataka Co-operative Societies Act, 1959 (for short ‘Act’).
4. It is also stated that third respondent- Society in its meeting held on 02.01.2019 resolved to appoint Secretary to the third respondent–Society and has already called for application from eligible candidates by publishing advertisement in vernacular newspapers and has also received applications for recruitment of Chief Executive Officer to third respondent which is under progress and as such petitioners could not have been disqualified under Section 29C of the Act.
5. As could be seen from case papers, complaint came to be lodged by one of the members of third respondent-Society before the Hon’ble Chief Minister, Hon’ble Minister for Co-operation and Secretary of Co-operation department alleging that appointment of directors as permanent Chief Executive Officer is contrary to law i.e., contrary to the provisions of the Act and bye-laws of the Society and as such, suitable action be taken against members of the managing committee. On the basis of said complaint proceedings came to be initiated against petitioners under Section 29C of the Act, which resulted in passing of the order dated 24.06.2019-Annexures-H-1 to H-7, whereunder petitioners have been disqualified under Section 29C of the Act .
6. Being aggrieved by the same appeal came to be preferred by the petitioners before first respondent in Appeal No.ANI(H&O) D2/ DAP/ 01/ 2019-2020 vide Annexure-J and an interlocutory application for grant of stay of the order of disqualification order also came to be filed. Appellate authority instead of passing orders on merits of said interlocutory application seems to have chosen a circuitous route to dismiss it on the ground of (i) appeal could be expeditiously disposed of on merits; and (ii) administrator has already been appointed and as such question of considering the application for stay would not arise vide order dated 01.07.2019 vide Annexure-J. In the words of first appellate authority reasons or cause for rejection of application for stay is as follows.
“ªÉÄîÌAqÀ CA±ÀUÀ¼À »£À߯ÉAiÀÄ°è ºÁUÀÆ FUÁUÀ¯Éà «±ÉõÁ¢üPÁjUÀ¼ÀÄ ¸ÀAWÀzÀ ¥Àæ¨sÁgÀªÀ£ÀÄß ªÀ»¹PÉÆArgÀĪÀÅzÀjAzÀ F ºÀAvÀzÀ¯Éèà ªÉÄîä£À«zÁgÀgÀÄ ¸À°è¹gÀĪÀ ªÀÄzsÀåAvÀgÀ CfðAiÀÄ£ÀÄß ¥ÀÄgÀ¸ÀÌj¸ÀĪÀÅzÀÄ ¸ÀªÀÄAd¸ÀªÀ®èªÉAzÀÄ ¥ÀjUÀt¹ ¸ÀzÀjAiÀĪÀgÀÄ ¸À°è¹gÀĪÀ ªÀÄzsÀåAvÀgÀ CfðAiÀÄ£ÀÄß wgÀ¸ÀÌj¹zÉ.”
When a statue has created a right of appeal in favour of aggrieved person to challenge such order passed by the original authority and appeal being continuation of the original proceedings, it would incumbent upon the appellate authority to adjudicate the interlocutory application filed if any on merits and appeal should be heard on merits and of course, and unless learned Advocates representing the parties were to agree in chorus for such process being given a go by. As otherwise appellate Authority cannot shun from discharging its statutory duty. In that view of the matter, order dated 01.07.2019 passed by appellate authority would not stand the test of law and it is liable to be quashed.
For reasons aforestated, I proceed to pass the following:
ORDER (1) Writ petitions are allowed in part.
(2) Order dated 01.07.2019 passed by first respondent in Appeal No.ANI(H&O) D2/ DAP/ 01/ 2019-2020 vide Annexure-J is hereby quashed.
(3) Interlocutory application which has been dismissed by this Court is restored to the file of first respondent for being adjudicated on merits and in accordance with law expeditiously and at any rate within three (3) days from today.
(4) It is also made clear that no opinion is expressed on the merits of the case. Appellate authority shall adjudicate said application without being influenced by any observations made in earlier order dated 01.07.2019 vide Annexure-J which has been quashed.
All contentions of both parties are kept open.
SD/- JUDGE RU