Vyavasaya Seva Sahakar Bank Niyamita v. State of Karnataka
2008-06-19
D.V.SHYLENDRA KUMAR
body2008
DigiLaw.ai
ORDER D.V. Shylendra Kumar, J. This writ petition is filed by Taluka level Co-operative Society. The Vyavasaya Seva Sahakar Bank Niyamit, Akkipet, Hale Hubballi, which also happens to be a member of Karnataka Central Co-operative Bank Limited, Dharwad. The Taluka level Co-operative Bank is complaining that elections for electing the members of the managing committee of the 4th respondent-District level Co-operative Bank has not been conducted for a long period, that though a returning officer has been appointed for such purpose, relevant calender of events have not been published; that an administrator who had been appointed to manage the affairs of the 4th respondent has remained in control of the bank for several years to the detriment of the Bank and the petitioner bank is in a dire state of affairs not able to put in place an elected representative of the choice of the members of the Co-operative bank to the management of the District Co-operative Bank. 2. In this context, petitioner has prayed for issue of a writ of mandamus to the 5th respondent-Returning Officer appointed so by the 2nd respondent-Registrar, Co-operative Societies to commence the process of elections in terms of Rule 14(2) of the Karnataka Co-operative Societies Rules, 1960. Pursuant to the appointment of the 5th respondent as the Returning Officer for conducting the elections of the 4th respondent bank in terms of an order dated 06.02.2008 passed by the Registrar (Joint Registrar of Co-operative Societies). Copy produced as Annexure-C to the writ petition. 3.The main grievance of the petitioner is that though the Returning Officer was appointed for conducting the elections in terms of the order dated 06.02.2008 and several months have elapsed thereafter, the Returning Officer has not even published the calender of events, the election process has not begun and therefore, mandamus has to be issued. 4. Notices had been issued to the respondents, the first respondent-State of Karnataka by Secretary to the Department of Co-operative Societies, the second respondent- Registrar of Co-operative Societies, the 3rd respondent-the Administrator of the 4th respondent Bank functioning eversince 10.12.2001 and the 5th respondent, the Returning Officer who is so appointed by the second respondent in terms of the order at Annexure-C dated 06.12.2008. 5. While the State and the Registrar - respondents 1 & 2 are represented by the learned Government Pleader.
5. While the State and the Registrar - respondents 1 & 2 are represented by the learned Government Pleader. Sri G.A.K. Gowda, learned Counsel has filed Power for the 3rd respondent - Administator and the 4th respondent - the Chief Executive Director of the Bank, and the 5th respondent-Returning Officer is represented by Sri Sanjay Gowda. 6. In the statement of objections filed on behalf of respondents 1 & 2, several practical difficulties have been pleaded as excuse for not ensuring that the elections are held in time. 7. Even in the statement of objections filed on behalf 3rd and 4th respondents by the M.D. of the bank, the explanation is not much different but with added version that steps have now been taken to ensure that the elections can be held by providing such materials as is necessary on their part to enable the 5th respondent to conduct the elections. 8. I have heard arguments on behalf of the petitioner as well as the respondents. 9. The matter was being heard and time had been taken by the learned Counsel for the respondents, when this Court had called upon the respondents to explain as to the inaction for not holding the elections so far, as is reflected in an order passed by this Court dated 13.6.2008, which reads as under:- “List on 17.6.2008 at the request of the Government Pleader for respondents to place before the Court on record the action that has been taken hitherto by the particular officer who has been appointed as a Returning Officer to conduct the elections. 2. The matter will have to be viewed seriously by this Court for dereliction of the duty by the concerned officer and his superiors, if no action is taken at all till now, after the officer was appointed as a ‘Returning Officer.” 10. The development as on date is that it is submitted on behalf of the 5th respondent - Returning Officer tha a calender of events has now been published by the 5th respondent and a copy of the same is produced before the Court along with a Memo filed by the Government Pleader appearing on behalf of the respondents 1 & 2.
It is submitted on behalf of the 5th respondent that such action has been taken within 3 days of the Administrator fixing the date of election to be on 27.7.2008 in terms of his Resolution dated 13.6.2008. Copy produced as Annexure-R3 to the statement of objections filed on behalf of respondents 1 and 2. 11. Submission is that the cause for issue of writ of mandamus is now avoided as a requisite action is produced by the respondents. Further it is submitted by the learned Counsel for the 5th respondent - Returning Officer that having regard to the state of affairs in the bank and its precarious position financially, the State Government could not pass orders exercising its power under Sec.121 exempting the 4th respondent bank from the applicability of provisions of Section 30 and under peculiar circumstances, the administrator had been continued and the term of the administrator had been last extended on 10.6.2008 upto 30.12.2008. 12. While it is true that with the publishing of the calender of events for holding elections to the managing committee of the 4th respondent bank, the prayer for issue of a writ of mandamus does not survive, this Court cannot help noticing the inordinate delay in conducting elections to the 4th respondent District Co-operative Bank particularly when the erstwhile managing committee, an elected body, which was managing the affaris of the bank came to be superseded by the Registrar with the approval of the State Government in terms of an order passed as early as on 10.12.2001. The order was passed by the Registrar exercising the power under Section 30(1) of the Karnataka Co-operative Societies Act, 1959. The administrator so appointed under Section 30(1) can be in its place for a period of 6 months from the date of his appointment and the rule of administrator can be extended for a further period of six months at a time. While such period in all cannot exceed one year in terms of Section 30(1) in the case of Co-operative Bank. Section 30(5) provides for extending such period even beyond, in consultation with the Reserve Bank of India. Section 30(5) reads as under:- “30(5).
While such period in all cannot exceed one year in terms of Section 30(1) in the case of Co-operative Bank. Section 30(5) provides for extending such period even beyond, in consultation with the Reserve Bank of India. Section 30(5) reads as under:- “30(5). notwithstanding anything contained in this Act, the Registrar shall, in case of Co-operative Bank, if so requried in writing by the Reserve Bank of India, in public interest or for preventing the affairs of the Co-operative bank being conducted in manner detrimental to the interest of the depositors or for securing the proper management of the Co-operative bank, by order in writing remove the committee of that Co-operative bank and appoint an administrator to manage the affairs of the Co-operative bank for such period [xxxx] as may, from time to time, be specified by the Reserve Bank of India.” 13. What is pointed is that having availed of this statutory provision, the holding of elections to the 4th respondent Co-operative Socieity Bank has been effectively avoided so far, even within the statutory provisions i.e., without violating the statutory provisions of the Act. 14. May be in the given case, there is no statutory violation by resorting to the sub-provisions relating to the Co-operative banks and also the power of the Government under Section 121, which reads as under:- Section 121:- Power to exempt socieities: The State Government may, by general or special order published in the Official Gazette, exempt any co-operatice society or any class of societies from any of the provisions of this Act, or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order. 15. But it cannot be forgotten that in a democratic set up, Institutions are required to be managed by democratically elected managing committees and should not be deprived of such functioning and by invoking a Rule, though permitted under the Act, should not be continued indefinitely. In the present case, it appears that a combination of several factors has resulted in the concurrent situation compelling the petitioner to approach this Court complaining that the authorities were in dereliction of duty to ensure holding of elections in time to elect the managing committee of the 4th respondent bank for not discharging their responsibilities in a proper manner and there is failure of duty on their part.
This Court cannot helpt but in observing that it looks the position is such. Not conductng elections for a management for electing a managing committee to look after the affairs of the bank when the erstwhile elected management was superseded more than seven years earlier is undoubtedly a gross inaction on the part of the authorities who had the responsibility to ensure such elections are conducted in time. 16. That apart, in the present case, one more aspect is required to be made clear, particularly as it was noticed that a Returning Officer who had been appointed, was left without any work or rendered helpless to act, only for the reason that the competent officer to fix the date of election, has not fixed the date of election in terms of Section 39(A)(ii). The date of conducting the elections should be fixed by the managing committee or by the administrator in its place or by the Special Officer. The administrator who incidentally happens to be the Deputy Commissioner of the District, who is already burdened with any other responsibilities, found it not possibe to bestow attention to the responsibilities of a administrator to fix the date of elections with the administrator not fixing a date for conducting elections to the 4th resopndent bank, the 5th respondent Returning Officer who had been appointed even in the month of February was left without any work and could not publish the calender of events eventhough the publication of calender of events of calender is regulated in terms of Rule 14(2) of the Rules 1960. 17. Rule 14(2) of the Karnataka Co-operative Societies Rules, 1960 reads as under:- “14(2) The Returning Officer appointed under sub-rule (1) shall publish a calender of events for the purpose of conduct of elections of members of the committee, at least twenty one days before the date of election.” 18. The Joint Registrar of Co-operative Society who is incidentally present before the Court today and this Officer is the one who acts as a Registrar of Co-operatives Societies in the State, and who has the responsibility for conducting elections to the Co-operatives Societies and Co-operative Banks of the State, has stated that the Registrar normally appoints the Returning Officer first and the date of election is fixed later by the managing committee or the administrator as the case may be. 19.
19. The present case has demonstrated that appointing a Returning Officer even before fixing the date of election is really of no use. As has happened on earlier occasions if there is an unwilling managing committee not ready to fix the date of elections or with a busy administrator like the present Deputy Commissioner who may not find time to attend to this function and in the absence of fixing the date of election, the returning officer will be rendered jobless. The election process already delayed gets further delayed if such practical difficulties crop up. 20. As the Registrar is the Statutory Officer who has the overall responsibility of ensuring that the functioning of the Co-operative Societies and Banks in the State is in order and conforming to the statutory provisions has also the responsibility to ensure that elections are conducted promptly on time to elect the managing committees of such Societies. Ensuring fixing of a date for holding elections promptly is a part of these responsibilities of the Registrar. Merely appointing a Returning Officer in itself is not the end. The Registrar should also ensure that the Returning Officer will be able to discharge his responsibility by ensuring that the date for the holding of elections is also fixed. Infact the proper procedure is that the managing committee or the administrator first fixes the date of election and then the administrator first fixes the date of election and then the Registrar steps in appointing a Returning Officer. If the date of election has not been fixed, the Registrar should first ensure that the managing committee or the administrator fixes the date of election so that the Returning Officer can publish the calender of events and ensure that the election process is successfully completed. 21. It is accordingly impressed upon the statutory authorities that it is their responsibility to ensure firstly to fix the date of election unless, managing committee or the administrator voluntarily fixes the election within the time as is envisaged under the Act. It is thereafter that the further proceedings would have to be taken. 22. The writ petition is disposed of with these observations impressing upon the authorities functioning under the statutory provisions to ensure that elections are conducted promptly and an elected body is put in place at the earliest. Writ Petition disposed of accordingly.