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2003 DIGILAW 477 (KAR)

FLEVY DSOUZA v. STATE OF KARNATAKA

2003-06-18

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( 1 ) HEARD the learned counsel appearing for respondents 3 to 5, the learned counsel appearing for the petitioner and the learned Government Pleader appearing for first respondent, for considerable length of time. ( 2 ) THE learned counsel appearing for respondents 3 to 5 submitted that the interim order granted by this Court may kindly be vacated, in view of the categorical statement made by the second respondent society in their statement of objections that the said society has received the grant by way of subsidy and the said subsidy taken from the Government has not been repaid so far. Further, to substantiate his submission, he drew my attention to Section 2 (a1) of the Karnataka Co-operative Societies Act (Act for short), wherein the word Assisted Society is defined as follows. (a-1) Assisted Society means a co-operative society which has received the Government assistance in the form of share capital or loan or grant or guarantee for repayment of loan or interest ( 3 ) THE learned counsel appearing for the respondents 3 to 5 was quick to point out that the instant case falls under the category of grant. Therefore, he submitted that the second respondent society has taken subsidy from the first respondent and that fact has been admitted in their statement of objections. To further substantiate his case, he placed reliance on the observation of the Honble Apex Court in the case of Bhogilal Chunilal Pandya vs. State of Bombay (AIR 1959 SC P 356), and drew my attention to the word statement which reads as hereunder. The word statement is not defined in the Act. Hence, the dictionary meaning of the word should be looked to in order to discover what it means Assistance may also be taken from the use of the word statement in other parts of the Act to discover in what sense it has been used therein He submits, in the instant case, under the Act, the word grant has not been defined. Therefore, he placed reliance on the meaning of subsidy as per the Blacks Law Dictionary which states that the word subsidy is a grant of money made by a Government in aid of the promoters of any enterprise, work or improvement in which the Government desires to participate or which is considered proper has to be given aid because such purpose is likely to be of benefit to the public. Therefore he submitted that in view of the meaning of the word subsidy, wherein it is clearly stated that subsidy means grant of money made by the Government in aid to the instant society and in the instant case, the society has availed the benefit of subsidy. Therefore, the case of the petitioner in the instant case comes within the definition of 2 (a1) under the category of grant. Therefore, he submitted that the interim order granted by this Court may kindly be vacated and further he submitted that the Administrator has handed over the charge on 8th February 2003 to the present petitioner and there is a reference to that effect in the resolution passed by the said society in Subject No. 522 dated 6th February 2003. On that date, in the meeting held, the respondent society, has unanimously accepted the membership of respondents 3 to 5 and the petitioner is also a signatory to the said resolution passed by the society dated 8th February 2003. He submits that when the petitioner did not raise his finger when the resolution was passed, it is not open for him to say at this juncture that the appointment of respondents 3 to 5 as members of the society, made by the Government is contrary to the statue. Further, he submitted that as on date, the petitioner has no locus standi to maintain this writ petition on the ground that he has been removed from the post of directorship and so far as the Directorship of the petitioner is concerned, after due enquiry, he has been disqualified. Therefore, he submits, prima facie, the respondents are entitled to seek for vacating the interim order granted by this Court. ( 4 ) PER contra, the learned counsel appearing for the petitioner vehemently submitted that, if the interim order granted by this Court is vacated, nothing would survive in the Writ Petition. Therefore, he submits, prima facie, the respondents are entitled to seek for vacating the interim order granted by this Court. ( 4 ) PER contra, the learned counsel appearing for the petitioner vehemently submitted that, if the interim order granted by this Court is vacated, nothing would survive in the Writ Petition. Further, he submitted that there is no power as such envisaged to the Government to appoint respondents 3 to 5 under Section 29 (1) of the Act and as per the Notification issued by the Government dated 30th January 2003, in the preamble of the Notification, except stating the respondents 3 to 5 have been appointed under Section 29 (1) they have not stated that under which category the second respondent society has taken the grant. Therefore, the said appointment made by the Government is not in accordance with the relevant provisions of the Act and also does not come within the definition of assisted society as defined under Section 2 (a1) of the Act. To further substantiate his case, he placed reliance on head note (b) of the judgment of the Honble Supreme Court reported in AIR 1960 SC 1320 head Note (b) Subsidy what constitutes payment by Government to an association for services rendered to Government by carrying on certain business payment does not constitute subsidy. The use of the word bonus or subsidy in Section 4 proviso (c) connotes that the payment is in the nature of a gift. ( 5 ) THEREFORE, he submitted that neither respondents 3 to 5 nor the second respondent have made out a case to vacate the interim order granted by this Court. After hearing the learned counsel appearing for the parties, and after going through the relevant meaning of the word grant as stated supra, and taking into consideration the law laid by the Apex Court in the case of Bhogilal Pandey, (supra), that if the word grant has not been defined in the Act, the Court may take the assistance of the dictionary meaning of the said word should be looked into in order to discover what it means. In the instant case, as stated above, as per the dictionary meaning the word subsidy means grant of money made by the Government in aid of the promoters of any enterprise working or improvement in which the Government desires to participate or which is considered a proper subject for government to aid, because of purposes likely to be given benefit to the public. In the instant case, it is stated by the second respondent society in unequivocal terms that they have received the subsidy/grant from the Government and the said amount has not been so far refunded to the Government. Therefore, in my considered view, the appointment of respondents 3 to 5 made by the Government to the second respondent society prima facie is proper and I do not find any error or illegality committed in making such appointment. ( 6 ) THEREFORE, having regard to the facts an circumstances of the case, as stated above, I do not find any justification to continue the interim order granted by this Court. Accordingly, the interim order granted by this Court is vacated. However, it is made clear that the continuation of respondents 3 to 5 as members of the second respondent society is subject to the result of this writ petition. --- *** --- .