IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.14326/2019(CS-RES) BETWEEN:
SRI. M.V. RAMAPPA S/O VENKATARAYAPPA AGED ABOUT 65 YEARS R/AT MINUGUREKKE VILLAGE MANCHENHALLI HOBLI GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT – 562 101.
... PETITIONER (BY SRI. SOMASHEKHAR K.H, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS UNDER SECRETARY CO-OPERATIVE DEPARTMENT VIDHANA SOUDHA BENGALURU - 560 001.
2. DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES CHIKKABALLAPUR TALUK CHIKKABALLAPUR DISTRICT – 562 101.
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES CHIKKABALLAPUR SUB-DIVISION A.P.M.C. YARD CHIKKABALLAPUR – 562 101.
4. SMT. GANGAMMA W/O H. VENKATAPPA THE DIRECTOR OF MANCHENAHALLI VYAVASAYA SAHAKARA SANGHA MANCHENAHALLI VILLAGE GOWRIBIDANUR TALUK – 562 101.
... RESPONDENTS (BY SMT. H.C. KAVITHA, HCGP FOR R-1 TO R-3; SRI. A.V. GANGADHARAPPA, ADVOCATE FOR R-4) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDETNS WHICH ULTIMATELY RESULTED IN PASSING OF THE IMPUGNED ORDER DATED:18.02.2019 VIDE ANNX-A AND QUASH THE ORDER DATED:18.02.2019 PASSED BY THE R-2 IN APPEAL NO.DRC/APPEAL/DISPUTE- 01/2018, ALLOWING THE APPEAL FILED BY THE R-4 BY SET ASIDE THE ORDER DATED:17.09.2018 WHEREIN THE R-4 HAS BEEN DISQUALIFIED FROM THE DIRECTORSHIP OF WOMEN MILK PRODUCERS CO- OPERATIVE SOCIETY, MANCHENAHALLI, GOWRIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT VIDE ANNX-A.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has called in question correctness and legality of the order passed by second respondent in DRC/Appeal/Dispute-01/2018 dated 18.02.2019 (Annexure-A) whereunder appeal filed by fourth respondent herein questioning the order dated 17.09.2018 (Annexure-D) passed by third respondent disqualifying fourth respondent came to be set aside.
2. Fourth respondent herein was the member of Manchenahalli Women Milk Producers Co- operative Society (for short ‘MWMPCS’) and she was elected to the Board of Directors of the said society. At the instance of petitioner who was the complainant, proceedings under Section 29C of the Co-operative Societies Act, 1959 (for short ‘Act’) came to be initiated against fourth respondent and an order came to be passed on 21.08.2017 (Annexure-B) by third respondent disqualifying fourth respondent on two grounds namely, (1) she had not attended three consecutive board meetings; and (2) she had failed to supply 500 litres of milk within a period of 180 days.
3. Being aggrieved by said order, appeal came to be filed by fourth respondent before second respondent, who by order dated 08.02.2018 (Annexure-C) affirmed the order dated 21.08.2017. According to the records now available, there is no material to show that this order has been challenged or in other words, said order has reached finality (as on date).
4. In the meanwhile, fourth respondent in the election held to Vyavasaya Seva Sahakara Niyamitha, Manchenahalli (for short ‘VSSN’) got elected as Director of the said society on 19.02.2017. However, proceedings came to be initiated for her disqualification by third respondent on the ground that fourth respondent had already earned disqualification namely, she had been disqualified from the board of directors of WMPCS and consequently, she is also liable to be disqualified from the board of directors of VSSN also. In the said proceedings, an order came to be passed on 17.09.2018 (Annexure-D) disqualifying fourth respondent under Section 29C of the Act. Being aggrieved by the said order, Appeal No.1/2018 was filed by fourth respondent before second respondent contending interalia that disqualification even earned for a different co-operative society would not ipso facto attract disqualification for a different category of society, as such, she sought for appeal being allowed. Petitioner herein had entered caveat and as such, he was arrayed as first respondent in the appeal before second respondent. After considering rival contentions and on scrutiny of records, appellate authority namely, second respondent by impugned order dated 18.02.2019 (Annexure-A) allowed the appeal, set aside the order of disqualification dated 17.09.2018 (Annexure-D) by arriving at a conclusion that object of the societies namely, WMPCS and VSSN being separate and distinct, disqualification earned by a member in respect of one society would not automatically entail any disqualification with regard to another society and it has to be independently adjudicated and only in the event of disqualification having been earned on the grounds specified in Section 29C of the Act, an order can be passed holding that such person would automatically be disqualified. Hence, petitioner is before this Court.
5. I have heard the arguments of Sri.Somashekhar, learned Advocate appearing for petitioner, and Smt.H.C.Kavitha, learned HCGP appearing for respondents-1 to 3 and Sri A V Gangadharappa, learned Advocate appearing for respondent-4.
6. It is the contention of Sri Somashekhar, learned Advocate appearing for petitioner that a member of the Board of a co-operative society were to earn disqualification under Section 29C of the Act, it would operate as a blanket order of disqualification against such person for contesting elections to the board of directors of any other co-operative society. Hence, he submits that order passed by third respondent disqualifying the petitioner is inconsequential and prays for setting aside the impugned order passed by second respondent which is diametrically opposite to the language and expression of Section 29C. In support of his submissions, he has relied upon decision of the co- ordinate Bench of this Court in GANGAPPA NAGAPPA DANANNAVAR AND ANOTHER vs THE MALAPRABHA CO-OPERATIVE SUGAR FACTORY LIMITED AND OTHERS reported in ILR 1979 KAR 1461.
7. Per contra, learned HCGP appearing for respondents-1 to 3 would submit that disqualification has to be understood in the background of Section 29C of the Act and as such, she prays for suitable orders being passed.
8. Sri A.V.Gangadharappa, learned Advocate appearing for respondent-4 would support the impugned order contending that impugned order does not suffer from any infirmity and first appellate authority having understood the language and expression employed in Section 29C of the Act has found that disqualification referred to thereunder would be applicable to a society in respect of which the order of disqualification has been passed. Hence, he prays for rejection of the writ petition.
9. Having heard the learned Advocates appearing for parties and on perusal of records, this Court is of the considered view that it is apt and appropriate to extract Section 29C of the Act which had been pressed into service by the learned Advocates appearing for parties and it reads thus:
“29-C. Disqualification for membership of the board:- (1) No person shall be eligible for being elected or appointed or continued as a member of the board of any co- operative society, if ---
(a) to (p) xxx (2) No person including a person elected by a co-operative society as a member of a board of another co-operative society of which such co-operative society is a member shall be a President or Chairperson, Vice President or Vice-Chairperson or other office bearer of more than two co-operative societies.
(3) If the board of a co-operative society fails ---
(a) to (c) xxx every member of such defaulting board shall be disqualified for being elected or appointed or continued as a member of the board of the society for a period of five years from the date of the order of disqualification.”
10. At this juncture itself, it would be apt and note the judgment relied by learned Advocate appearing for petitioner in the matter of GANGAPPA NAGAPPA DANANNAVAR AND ANOTHER vs THE MALAPRABHA CO-OPERATIVE SUGAR FACTORY LIMITED AND OTHERS reported in ILR 1979 KAR 1461 whereunder order of disqualification under Section 29C(7) of the then Karnataka Co-operative Societies Act (Amendment) Act 1975 read with Section 126A(1) of Karnataka Co-operative Societies (Amendment) Act, 1976 came to be passed by Joint Registrar of Co-operative Society, Belgaum disqualifying Vyavasaya Sahakari Sangha Limited, Tarihal represented by its representative SriNinganagouda Basanagouda Patil for being elected or appointed or being continued as a member of the Committee for Management of Belgaum DCC Bank Limited, Belgaum and Tarihal VSS Limited holding he shall not be eligible for re-election or appointment as a member of the committee of management of Belgaum DCC Bank for a term of one year from the date of said order. It was further ordered for removal of Tarihal VSS Limited from the Committee of Management of Belgaum DCC Bank namely, Sri Ninganagouda Basanagouda Patil, who represented Tarihal VSS Limited and consequently ordered for his removal from DCC Bank also. In the said case, Sri Ninganagouda Basanagouda Patil through Tarihal VSS Limited had filed nomination paper to the election of the Board of Directors of Malaprabha Co-
operative Sugar Factory Limited, which nomination came to be rejected on the ground that society’s representative was also disqualified. This order was challenged contending interalia before this Court that disqualification which was earned by Sri Ninganagouda Basanagouda Patil was with reference to Tarihal VSS Limited and it would not act as universal disqualification or otherwise, he was not disqualified from contesting election to Malaprabha Co-operative Sugar Factory Limited. It is in this background, existing statutory provision namely, Section 29C of the Act which has been extracted by co-ordinate Bench in the judgment was examined and held that proviso to clause (a) of sub-section (1) of Section 29C where words or expression used “such co-operative society” is followed by “or of election or appointment to the Committee of any other Co- operative Society” and as such embargo placed thereunder would definitely be applicable and consequently, order of rejection of nomination paper of Sri Ninganagouda Basanagouda Patil for contesting to the Board of Directors of Malaprabha Co-operative Sugar Factory Limited which was rejected came to be upheld. In this background, when the provision which was existing, then disqualification was upheld and said provision would clearly indicate that every member of the defaulting board would be disqualified for being elected or appointed or continued as a member of the board of the society for a period of five years from the date of order of disqualification.
11. Though learned Advocate appearing for petitioner has made a valiant attempt to contend that expression used in Section 29C(1) refers to another co-operative society, said argument cannot be accepted as it is loaded with fallacy, inasmuch, sub- section(2) of Section 29 refers to primary society which is a member of another co-operative society i.e., Federal/State level society. To further clarify, it is held that if a primary society which is member of state level society and such primary society were to earn disqualification, it cannot be heard to contend that such primary society would still be entitled to participate in the election in respect of any other state level society inasmuch as, disqualification refers to the society and not to the individual. Whereas, in the instant case, order of disqualification which had been passed by third respondent by order dated 17.09.2018 relates to WMPCS and it was for non supply of 500 ltrs. Milk by petitioner continuously for 180 days which is referable to Milk Producers Co- operative Society, Manchenahalli and as such, disqualifying the petitioner universally from contesting election to any other co-operative society would be in violation of the provisions of the Act. On the other hand, if fourth respondent were to contest for any Milk Producers Co-operative Society, definitely, disqualification which has been earned by her already would automatically surface and some would be staring at her or in other words, disqualification to contest the election would automatically surface in the light of disqualification already earned.
12. Though Sri A V Gangadharappa, learned Advocate appearing for respondent-4 would be partially correct in contending that petitioner has no locus standi inasmuch as, disqualification provision under Section 29C of the Act as could be seen from the provisions of the Act is a lis between the State and the person sought to be disqualified and if at all petitioner or applicant being aggrieved by any order passed by the competent authority in not disqualifying any person and such person were to contest for election and gets elected, recourse to the complainant would be to raise a dispute under section 70 of the Act and not by filing a writ petition or appeal against such order.
13. In fact, Division Bench of this Court in the case of PARAPPA vs NANDARAYAPPA reported in (1998) 6 KLJ 557 while dealing with disqualification of a member based on a complaint given to the Director under the provisions of Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 has held that proceedings for disqualification can be initiated suo motu or on a complaint given by a third party; no individual person would have statutory right to invoke such jurisdiction of the Director, though if a complaint is made by any individual person making allegation regarding disqualification incurred by the very member, Director can consider such complaint as an information only for the purposes of invoking suo motu jurisdiction; but the complainant cannot claim any right either to defend or to support any proceedings initiated by the Director.
14. Further, Hon’ble Apex Court in the case of RAVI YASHWANT BHOIR vs DISTRICT COLLECTOR, RAIGAD & OTHERS reported in (2012)4 SCC 407 while dealing with removal of elected members for misconduct and the issue of proper and necessary party to such proceedings, has held that where complaint was filed by the complainant against abuse of public office, he having only remote interest cannot seek to be a party on ground of public interest. Dealing with juridical principle of damnum sine injuria, Hon’ble Apex Court at paragraphs 58 to 60 has observed that person who suffers from legal injury can only challenge the act or omission and there may be some harm or loss that may not be wrongful in the eye of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. It has been further held at paragraph 59 that in such cases complainant has to establish that he has been deprived of or denied of a legal right and thereby he has sustained injury to any legally protected interest and in case, he has no legal peg for a justiciable claim to hang on, he cannot be heard to array him as a party to the lis.
15. Keeping these authoritative principles laid down by Hon’ble Apex Court in mind, when it is applied to the facts on hand, as already noticed herein above, at the cost of repetition, it would indicate that remote injury which petitioner herein claims is that fourth respondent having been elected to VSSN and having already earned disqualification, he (fourth respondent) for being continued as member of board of WMPCS, if fourth respondent is continued, it would be contrary to mandate of Section 29C. However, there is no personal injury caused to the petitioner and no such injury being caused to petitioner’s right is established. On the other hand, if petitioner was able to establish (in the instant case which he is not) by demonstrating that he was also a rival candidate for the election, then, his recourse can only be to invoke Section 70 of the Act challenging the election raising all such grounds including personal injury caused to him. However, it would not give right for petitioner to invoke Article 226 of Constitution of India.
16. For the aforestated reasons, this Court is of the considered view that there is no merit in this writ petition and accordingly, it stands dismissed.
In view of dismissal of writ petition, I.A.No.1/2019 for vacating stay does not survive for consideration and accordingly it is dismissed.
SD/- JUDGE *sp