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2003 DIGILAW 640 (KAR)

V. Narayanaswamy v. State of Karnataka

2003-08-04

N.KUMAR

body2003
ORDER N. Kumar, J.--Petitioner No. 1 claims to be the president of one Sri Mallikarjunaswamy Educational Society which is registered under the Karnataka Societies Registration Act. Second Petitioner claims to be the honorary Secretary of the said society. They have challenged in this Writ Petition the order passed by the Government as per Annexure-A appointing an Administrator to the said society under Section 27A of the Act. 2. Petitioner's case is, one Dr. Mallikarjunaswamy was the president of the said society and one Bhadragiraiah was the Secretary. In fact they were elected to the said post in the meeting held on 23.4.1995. Bhadragiraiah got a government employment and therefore he tendered resignation to the post of Secretary. The said resignation was accepted by the Managing Committee on 20.6.2002 and in his place the second Petitioner was appointed as the Secretary. As per Annexure-B on 2.3.2003 the President, Mr. Mallikarjunaiah was removed from the Presidentship by moving a No Confidence Motion. In his place the first Petitioner was appointed as the President temporarily. The said President and Secretary were holding office from the year 1986. The Registrar of Societies issued a notice as per Annexure-C dated 5.3.2003 calling upon the Society to produce before them the account books upto 31.12.1994 failing which they threatened action against them. The Petitioners sent a reply on 10.3.2003 requesting for 15 days time on the ground that the President who was in possession of the documents was removed and the present office bearers required time to collect the same. Again Annexure-E dated 3.4.2003 was issued to furnish the documents. It is thereafter Annexure-F came to be issued calling upon the Petitioners to show cause why in spite of the direction issued under Section 25 as they have not complied an Administrator should not be appointed to the said society. The said show-cause notice was replied by the Petitioners as per Annexure-G dated 19.5.2003 meeting all the allegations. Along with the said reply the audited accounts were submitted by the Petitioners to the Respondents. It is thereafter the Respondents proceeded to invoke Section 27A of the Act and have passed Annexure-A, the impugned order appointing an administrator for a period of six months. The Petitioners have challenged the said order in this Writ Petition. 3. The impleading applicants have filed an application to implead themselves as parties and also an application for vacating the stay. The Petitioners have challenged the said order in this Writ Petition. 3. The impleading applicants have filed an application to implead themselves as parties and also an application for vacating the stay. Their case in brief is the Petitioners are not elected to the office of the President and Secretary of the Society and therefore they have no locus standi to file this Writ Petition. Secondly it is contended Section 15 of the Act clearly sets out who are the persons who could file a Writ Petition on behalf of the Society and as the Petitioners do not satisfy the requirements as contemplated under Section 15 of the Act, the Writ Petition filed by them is not maintainable. It was further contended admittedly no general body is conducted for years, no accounts are produced and there are two factions in the society and therefore the Government has jurisdiction to appoint an administrator under those circumstances to the society and therefore holding an enquiry is not a condition precedent before passing an order appointing the administrator. Lastly it was submitted the impleading applicants are all permanent members of the society and as the Petitioners are not elected members, the action of the government is proper so that the Society could be managed by the duly elected members and therefore in that view of the matter it was submitted the Writ Petition is liable to be dismissed. 4. The learned Government Advocate submits though an enquiry is a must before passing an order appointing an administrator, but if it is passed under Section 27A(c) and if the administrator is to be appointed on the ground that the Annual General Body Meeting is not held, on accounts are produced or that the term of the office of the Governing Body is expired, no such enquiry is contemplated. He submits in the instant case no account books are furnished, no general body is held and therefore in law no enquiry is required to be conducted and therefore the order passed by the Government is valid and legal and the impugned order does not call for any interference. 5. From the aforesaid rival contentions and facts it is clear that the Society is registered under the Karnataka Societies Registration Act, 1960. One Mallikarjuniah and Bhadragiraiah were the President and Secretary of the said society. 5. From the aforesaid rival contentions and facts it is clear that the Society is registered under the Karnataka Societies Registration Act, 1960. One Mallikarjuniah and Bhadragiraiah were the President and Secretary of the said society. On account of his employment the Secretary submitted his resignation and he ceased to be the Secretary of the Society. The President was removed by a No Confidence Motion by other members of the Managing Committee. Petitioners herein are the life members of the Society which is not in dispute. Similarly, applicants are also life members. The allegations which are made against the Society pertain to the period prior to March 2003 when this Mallikarjuniah and Bhadragiraiah were the office bearers. Now for the defaults committed by those office bearers prior to the impugned order, the present office bearers namely the Petitioners are superseded and an administrator is sought to be appointed. A reading of the impugned order makes it very clear that the reason for appointing an administrator is there is a report by the Registrar of Societies informing the Government that the accounts of the Society are not maintained, they are not produced and that there is two rival factions in the Society who are preventing the smooth functioning of the Society and therefore the Registrar has recommended to the Government for appointing an administrator. Though the said report recognizes the Petitioners as the office bearers who are now running the society and they have given the explanation for the shortcomings in the show-cause notice the Government has proceeded to pass the impugned order by appointing an administrator. Therefore, the impugned order is an order passed under Section 27A(1)(c) and not an order under 1(a) or a(b). Section 27A(1)(c) reads as under: 27A. Appointment of Administrator: Notwithstanding anything in this Act. (1)(a) .... (1)(b) .... (1)(c). Where on a report made by the registrar or otherwise, on enquiry, the State Government considers it necessary in public interest so to do, the State Government may, by order published in the official gazette, appoint an Administrator for such society for such period, not exceeding six months, as may be specified in the order, to manage the affairs of the society. 6. 6. Therefore, it is clear when the impugned order says the said order is passed on the report of the Registrar of Societies, before the said order could be passed the Government is under a statutory obligation to hold an enquiry before passing the impugned order. Admittedly, in this case after submission of the report of the Registrar no enquiry is held before the impugned order is passed. Section 25(2)(c)(iii) makes it mandatory for the Registrar to communicate the result of the enquiry held by him to the Society concerned. Therefore, if the Registrar has submitted a report to the Government recommending for appointing an administrator, a copy of the said report had to be given so that they would had an ample opportunity to defend the same. Admittedly in this case no such copy is furnished to the Petitioners, no enquiry is held as mandatorily required under Sub-clause (c) to Sub-section (1) of Section 27A. Therefore, the impugned order passed by the Government cannot be sustained. Accordingly it is liable to be quashed. 7. In so far as the contention of the applicants that the Petitioners have no locus standi to prefer this Writ Petition or they cannot represent the Society is concerned, the list of members submitted by the applicants along with the application show that at any rate the second Petitioner is a life member of the Society. In the said list one Narayanaswamy is shown as the member and his initial is shown as "A". Whereas the initial of the first Petitioner in the Writ Petition is shown as "V". The learned Counsel for the Petitioners contends that Narayanaswamy in the list and petition are same whereas the learned Counsel for the applicants disputes the said contention. Even if the said Narayanaswamy is excluded from the list, second Petitioner is a life member, who is elected and selected as Secretary in place of Bhadragiraiah who resigned the post of the Secretary as is clear from Annexure-J produced along with the rejoinder. Even if the said Narayanaswamy is excluded from the list, second Petitioner is a life member, who is elected and selected as Secretary in place of Bhadragiraiah who resigned the post of the Secretary as is clear from Annexure-J produced along with the rejoinder. Whether these meetings are called legally and its validity cannot be gone into in these proceedings particularly when it is not disputed that the Secretary on appointment left the post of Secretary in his place another life member has been elected by the members of the Managing Committee and therefore Section 15 of the Act deals only with who should represent the society when the Writ Petition is filed on behalf of the society. In this case the Writ Petition is not filed by the Petitioners in their individual capacity. In any view of the matter, the Petitioners have locus standi to challenge the impugned order which is passed by the Government and I do not find any substance in any of the contentions urged on behalf of the applicants. Hence, I pass the following order: 8. Writ Petition is allowed. Rule made absolute. The impugned order passed by the Government as per Annexure-A appointing an administrator to the society is hereby quashed. However, it is open to the Respondents to hold an enquiry on the report submitted by the Registrar and pass such appropriate orders in accordance with law after hearing all the persons who are going to be affected by the said order. This exercise shall be completed by the Government within 30 days from the date of receipt of this order. It is open to the applicants to contest and put forth all the contentions. 9. Sri V.Y. Kumar, the learned Government Advocate, is permitted to file memo of appearance for Respondents within four week.