IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.36759/2017 (CS-RES) BETWEEN SRI K.EREGOWDA, S/O KENCHEGOWDA, AGED ABOUT 48 YEARS, R/AT HOSURU VILLAGE, HAMPAPURA HOBLI-571125, H.D.KOTE TALUK, MYSURU DISTRICT. ... PETITIONER (By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR Sri ANANDA K., ADV.) AND 1. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, MYSURU DISTRICT, MYSURU-571001.
2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, HUNSUR SUB DIVISION, HUNSUR-571 105.
3. SRI.M.PRABHU, PRESIDENT, MILK PRODUCERS CO-OPERATIVE SOCIETY LTD., INDIRANAGARA-571114, H.D.KOTE TALUK, MYSURU DISTRICT. ... RESPONDENTS (By Sri M.A.SUBRAMANI, HCGP FOR R1 & R2;
Sri RAJENDRA KUMAR SUNGAY T.P., ADV. FOR C/R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 31.7.2017 PASSED BY THE R-2 IN NO. 29-C CASE NO.SA NI 43/DIS/1/2015-16 AT ANNEX-M AND DISMISS THE COMPLAINT FILED BY R-3 AT ANNEX-H OR DIRECT R1 TO CONSIDER THE APPEAL AND I.A. FOR STAY FILED BY THE PETITIONER CHALLENGING THE ORDER PASSED DATED 31.7.2017 PASSED BY R2 IN NO.29-C CASE NO.SA NI 43/DIS/1/2015-16 AT ANNEX-N & O AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. The question that falls for consideration in this case is whether the Deputy Registrar of Co-operative Societies was right and justified in dismissing the application filed by petitioner seeking interim stay of the order dated 31.07.2017 passed by the Assistant Registrar of Co- operative Societies, Hunsur Sub-Division, Hunsur. The Assistant Registrar disqualified the petitioner exercising powers under Section 29-C of the Karnataka Co-operative Societies Act, 1959 (for short ‘the Act’).
2. Petitioner was duly elected as a member of Milk Producers Co-operative Society Limited on 02.09.2013. Proceedings were initiated against him as a result of a complaint given on the ground that before completing the period of one year from the date of becoming a member of the said society he had contested the election though he was ineligible to do so by virtue of Section 20(2) of the Act. This factual aspect was contested by petitioner before the Assistant Registrar. He also took up the contention that Assistant Registrar had no power or jurisdiction to examine the said question as Section 29-C of the Act only provided for enquiry into disqualification incurred by any member after he became the member of a co-operative society and during the term of his office as such. The Assistant Registrar repelled these contentions and disqualified the petitioner holding that he was not eligible to contest for election to the Society as he had not completed one year from the date he was admitted as member of the Society. This was challenged in appeal before the Deputy Registrar. An application was filed seeking interim stay of the order. Petitioner placed reliance on the Division Bench judgment of this Court in the case of GOVINDAPPA VS. SOMASEKHAR ISHWARAPPA & OTHERS – 1979(1) Kar.L.J. Page 124.
3. The Deputy Registrar has rejected the application for stay. He has observed that the judgment of the Division Bench was rendered in the light of Sub-section (7) of Section 29-C read with Section 70 of the Act, but the order passed by the Assistant Registrar was under Sub-section (8) of Section 29-C of the Act.
4. I have heard the learned counsel for all parties. I find from a perusal of Section 29-C of the Act, particularly, Sub-sections (7) and (8) and the judgment of the Division Bench in Govindappa’s case referred to above. Law laid down by the Division Bench stating that enquiry with regard to disqualification incurred by the member of the Board in terms of Sub-sections (7) of Section 29-C of the Act could be permissible only if the member had incurred such disqualification after he became such a member of the board is very much applicable even in the wake of the provisions in sub-clause 8 of Section 29-C of the Act.
Therefore, reasons assigned by the Deputy Registrar trying to make a distinction by referring to Sub-section (8) of Section 29-C is wholly illegal. The Deputy Registrar has not examined the effect of the provisions in Section 29-C(7) and 20-C(8) while coming to such a conclusion. He has brushed aside the binding precedent of this Court lightly without taking note of the law laid down therein. Law laid down by the Division Bench is very clear inasmuch as in an enquiry under Section 29-C with regard to disqualification of the member of the board, what has to be examined is whether the disqualification was incurred after the concerned person became member of the board. If he had incurred any disqualification prior to his election as member of the board, that would not be the subject matter of enquiry under Section 29-C. Relevant observations made in the judgment of the Division Bench in Govindappa’s case referred to above contained in Page 126 can be usefully extracted hereunder:
“Sub-Section (1) of Section 29-C of the Act lays down that no person shall be eligible for being elected or appointed or continued as a member of the committee if he is suffering from any of the disqualifications mentioned therein. It follows that if a person is suffering from any disqualification before the election, he cannot be a candidate and his nomination paper has to be rejected. But if notwithstanding such a disqualification being there the election is held and he is elected, his election can be challenged in an election petition under Section 70 of the Act filed within the period of limitation prescribed under Section 72A of the Act. If a member becomes subject to any disqualification mentioned in Section 29-C (1) of the Act after the election is held, then the question whether he has become subject to any such disqualification or not, has to be decided under Sub-section (7) of Section 29-C of the Act by the Registrar or any other authority on whom power is conferred. If this distinction between a pre-election disqualification and post-election disqualification is kept in view it is possible to give effect both to Section 70(1) and Section 29-C(7) of the Act without doing violence to the language and intendment of the statute”.
Again in Page 128 the Division Bench has proceeded to observe as under:
“Moreover the language of Sub-section (7) of Section 29-C also suggests that it cannot refer to the disqualification of a candidate before the election. It provides that it shall apply only to a member of a committee who was or has become subject to any disqualification. A person becomes a member only after he is duly elected. Hence, the said provision can apply only to a post election disqualification”
5. These observations are very much applicable to the facts on hand. Therefore, prima facie question regarding jurisdiction of the Assistant Registrar to embark upon an enquiry based on the report submitted to him is doubtful. Therefore, the Deputy Registrar ought to have granted an interim order of stay of disqualification order passed by the Assistant Registrar.
6. Learned counsel for petitioner is also right and justified in inviting the attention of this Court to the judgment of the Division Bench in W.A.No.1666/2008 disposed of on 05.11.2008 wherein it has been held that if the basic question regarding disqualification of the member was the subject matter of appeal before the appellate authority and if the order passed by the original authority disqualifying the candidate was not stayed pending consideration of the appeal, the candidate concerned would suffer irreparable loss, interim stay deserved to be granted.
7. Therefore, appellate authority ought to have taken into consideration the balance of convenience and the prima facie case made out and ought to have granted an interim order pending disposal of the appeal, particularly, when jurisdiction of the original authority itself was under serious challenge and the judgment of the Division Bench of this Court prima-facie supported the case of the petitioner.
8. In the light of the above, this writ petition deserves to be allowed. Accordingly, petition is allowed. Impugned order passed by the Deputy Registrar is set aside.
There shall be an interim order of stay of the order passed by the Assistant Registrar till the disposal of the appeal by the Deputy Registrar. The Deputy Registrar is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order.
Sd/- JUDGE VP