IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NO.45014/2019(CS-RES) BETWEEN:
SRI. H.T. MANJU S/O THIMMEGOWDA AGED ABOUT 45 YEARS HARALAHALLI VILLAGE AND POST, KR PET TALUK MANDYA – 571 426.
(BY SRI. VARUN J PATIL, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S. BUILDING, BANGALORE – 560 001 ...PETITIONER REPRESENTED BY ITS SECRETARY.
2 . THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES PANDAVAPUR SUB DIVISION PANDAVAPUR MANDYA DISTRICT – 571 432.
3 . THE DEPUTY REGISTRAR CO-OPERATIVE SOCIETIES MANDYA DISTRICT MANDYA – 571 401.
4 . HARLAHALLI MILK PRODUCERS CO-OPERATIVE SOCIETY HARLAHALLIPOST, K.R. PET TALUK MANDYA DISTRICT – 571 428 REPRESENTED BY ITS CEO.
5 . THE MANDYA DISTRICT MILK PRODUCERS CO-OPERATIVE SOCIEITIES UNION GEJJALLAGERE MADDUR TALUK MANDYA DISTRICT – 571 428 REPRESENTED BY ITS MANAGING DIRECTOR.
6 . SRI. H. MAHESH S/O JAVAREGOWDA AGED MAJOR SHILENERE HOBLI K.R. PET TALUK MANDYA DISTRICT 571 426.
…RESPONDENTS (BY SMT. H.C. KAVITHA, HCGP FOR R-1 TO R-3;
SRI. P. ANAND, ADVOCATE FOR R-6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTICE DATED:18.09.2019 ISSUED BY R-
2 VIDE ANN-H AND QUASH THE ORDER DATED:18.09.2019 ISSUED BY R-3 VIDE ANNX-G.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for orders by consent of learned Advocates appearing for parties it is taken up for final disposal.
2. Heard Sri. Varun J. Patil, learned counsel appearing for petitioner and Smt. H.C. Kavitha, learned HCGP appearing for respondent Nos. 1 to 3. and Sri. P. Anand, learned Advocate appearing for respondent No.6.
3. Petitioner came to be elected as director of fourth respondent-Society in the elections held on 01.02.2015. Sixth respondent filed a complaint before second respondent alleging that petitioner has to be disqualified under Section 29C(8)(b) of the Karnataka Co-operative Societies, Act, 1959 (for short ‘Act’) on the ground that petitioner being a director of the fourth respondent society had failed to supply the milk for a period of 180 days in the previous co-operative year. Hence, notice dated 26.08.2019 came to be issued to the petitioner vide Annexure-B and after considering the reply dated 27.08.2019 –Annexure-C submitted by petitioner, second respondent by order dated 28.08.2019- Annexure-D dropped the proceedings.
4. In the elections held to the fifth respondent- Union, petitioner came to be elected as its director on 08.09.2019-Annexure-E. In the meanwhile, sixth respondent who is the complainant being aggrieved by order dated 28.08.2019- Annexure-D filed an appeal under Section 106 of Karnataka Co-operative Societies Act,1959 before third respondent who is the appellate authority. Copy of the order sheet of third respondent – Appellate authority which has been made available by Sri. Varun Patil, learned counsel appearing for petitioner during course of his arguments has been perused. Same would disclose that appeal came to be presented by sixth respondent on 17.09.2019 and was listed for hearing on 18.09.2019 and third respondent – Appellate Authority ordered for issuance of emergent notice by fixing the date of hearing as 18.09.2019. On said dated i.e., 18.09.2019 impugned order came to be passed by setting aside the order dated 28.08.2019- Annexure-D passed by second respondent and matter came to be remitted back to the second respondent for adjudication afresh. Hence, petitioner who had been arrayed as third respondent before second respondent- appellate authority in Appeal No.5/2019-20 is before this Court.
5. It is rightly contended by Sri. Varun J. Patil, learned counsel appearing for petitioner, third respondent -appellant authority having issued notice on the appeal filed by the sixth respondent to petitioner herein, had disposed of said appeal even before the ink could dry on the notice issued. In other words, even before service of notice could be completed impugned order has been passed which would not stand in the test of law even for a second, inasmuch as it is in violation of principles of natural justice. Hence, impugned order is liable to be quashed.
6. The incidental question which would arise in this petition is;
“Whether the petitioner is to be awarded the cost or not.”
Principle of cost should follow the cause would squarely be applicable to the facts on hand. In the instant case, petitioner has been forced to approach this Court questioning the impugned order dated 18.09.2019 which has been passed by the third respondent. On the day third respondent ordered for issuance of emergent notice as observed hereinabove, appeal in question came to be filed by sixth respondent i.e., on 17.09.2019. Date of hearing was fixed to 18.09.2019 @ 11.00 a.m.. Order sheet of 18.09.2019 would clearly indicate that third respondent i.e., writ petitioner herein was not present obviously he could not have been present, inasmuch as notice of appeal had not been served and there is no material available on record to show that notice of the appeal had been despatched by the Office of the third respondent and same had been received by writ petitioner. This would clearly indicate that third respondent has not only acted in haste but also in utter disregard to the principles of natural justice. At this juncture, it would be apt and appropriate to note the observations made by the Hon’ble Apex Court in the case STATE OF MADHYA PRADESH AND OTHERS vs. SANJAY NAGAYACH AND OTHERS reported in (2013) 7 SCC 25, whereunder it has been held that statutory authorities working within the frame work of act should not act with pre-conceived notion and shall not speak its masters’ voice, because formation of opinion must be its own and not of somebody else in power, to achieve some ulterior motive. It came to be held by the Hon’ble Apex Court to the following effect;
36. Statutory functionaries like Registrar/Joint Registrar of Co- operative Societies functioning under the respective Co-operative Act must be above 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 the 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 not speak his masters’ voice, because the formation 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.
42.5. The Registrar/Joint Registrar should always bear in mind the consequences of an order of supersession which has the effect of not only ousting the Board out of office, but also to disqualify them for standing for election in the succeeding elections. The Registrar/Joint Registrar therefore is duty-bound to exercise his powers bonafide and not on the dictation or direction of those who are in power.”
In the light of above authoritative law laid down by Apex Court when facts on hand are examined it would clearly indicate that third respondent exercising the appellate power under Section 106 of the Act, having ordered for emergent notice to be served on the third respondent i.e., writ petitioner herein, had fixed the hearing date by granting one day. Registered post cannot be served within one day as is the common experience. Even otherwise, there is no material available on record to show hand summons having been ordered or hand summons having been delivered to petitioner. This would clearly indicate that third respondent –Appellate Authority intended to dispose of the appeal by presuming “come what may I will allow the appeal”. Hence, petitioner who had been made to file present writ petition cannot go empty handed that too after having expanded amount to defend his rights and he is required to be reimbursed and pay some reasonable cost which he would have incurred. Hence, the court is of the view that ordering cost in favour of petitioner is very much essential in the facts obtained in this case.
For the reasons aforestated, I proceed to pass the following;
ORDER (1) Writ petition is allowed with costs.
(2) Order dated 18.09.2019 passed by third respondent in Appeal No.DRY/DAP/05/2019-20 is set aside.
(3) Petitioner who is third respondent in Appeal No.5/2019-20 shall appear before appellate Authority on 14.11.2019 without waiting for further notice and Appellate authority shall dispose of appeal on merits and in accordance with law.
(4) Cost quantified at Rs.5,000/- is payable by third respondent authority to petitioner and first respondent would be at liberty to recover the same from the third respondent in accordance with law by issuing notice.
SD/- JUDGE RU