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2010 DIGILAW 608 (KAR)

Chokka Basavanna Gowda v. State of Karnataka

2010-04-29

ARAVIND KUMAR, MANJULA CHELLUR

body2010
Judgment : These appeals are filed seeking setting aside the interim order dated 22-4-2010 passed by the learned Single Judge in W.P.Nos.63136 to 63138 of 2010 by allowing the writ appeal. 2. The interim order dated 22-4-2010 in the above writ petitions reads as under: “Pending issue of Rule nisi in the aforesaid writ petition it is hereby ordered by this Court on Thursday the 22nd day of April, 2010 by Hon’ble Mr. Justice S. Abdul Nazeer. That the operation and execution of the impugned order dated 8-4-2010 bearing No.Sam.Ni.Ra.V-4:29-C:59/2009-10 vide Annexure-A, passed by the 2nd respondent i.e., the Joint Registrar of Co-operative Society, Gulbarga Division, Raichur, Order dated 8-4-2010 bearing No.Sam.Ni.Ra.V-4:29-C:60/2009-10 vide Annexure-B passed by the 2nd respondent, Proceedings of meeting of Bellary District Co-operative Central Bank Limited, Hospet, dated 13-4-2010 bearing No.Nadavalike:165:2010-2011, vide Annexure-C and order bearing No.Aa.Na.Aa.Aa.Pa.Ta:204:2010-2011, dated 12-4-2010 vide Annexure-D, in the above writ petition, be and the same are hereby stayed, for a period of three months. Respondents 7 and 8 are restrained from allowing the 9th respondent to represent BDCC Bank, Hospet, in the proposed election to be held on 26-4-2010 for the post of President of the State Co-operative Apex Bank. Liberty is reserved to the respondents to seek modification/vacation of this interim order in accordance with law. The parties are also permitted to move vacation Bench for appropriate orders, if they so desire”. The present appellant is aggrieved insofar as the interim direction issued to respondents 7 and 8 restraining the 9th respondent to represent the BDCC Bank, Hospet in the proposed election to be held to the post of President of the State Cooperative Apex Bank. 3. The undisputed facts are as under: The 9th respondent herein by name T.M. Chandrashekariahya was elected as Director of VSSBN Kududarahalu Co-operative Society. He was deputed as a representative of the said society to the TAPCMS Siruguppa the secondary society. His directorship to Kududarahalu Co-operative Society was to expire on 30-3-2010 and this respondent did not contest the election for directorship to VSSBN Co-operative Society on 19-3-2010. The 10th respondent by name Sri Gadeppa was elected as a Director of Bellary Kendra Sahakari Sagatu Marata Sangha for a term of 5 years. He is also a primary member of District Horticulture Society and was elected as Director of the said Society. The 11th respondent-Mr. The 10th respondent by name Sri Gadeppa was elected as a Director of Bellary Kendra Sahakari Sagatu Marata Sangha for a term of 5 years. He is also a primary member of District Horticulture Society and was elected as Director of the said Society. The 11th respondent-Mr. Ravindra is the President of Bellary District Centre Cooperative Bank (BDCC Bank) and respondents 9 and 10 claims to be the strong supporters of 11th respondent. The BDCC Bank, Bellary District Centre consists of 13 Directors and they are either elected or nominated from different categories. The appellant herein Chokka Basavanna Gowda is from Belagalu, Shiraguppa Taluk and he is the Director of the BDCC Bank, Hospet. 4. On 12-4-2010 election to the post of delegate/representative to represent 6th respondent to the Apex Bank (State level) of the 7th respondent took place. Respondent 11-Ravindra and the appellant-Chokka Basavanna Gowda both contested the election. Appellant was elected by a majority of 6 to 5 votes and 11th respondent was defeated. 5. Prior to this election on 12-4-2010 to the post of delegate or representative to the Apex Bank, disqualification proceedings came to be initiated against the 9th and 10th respondents herein and originally the time was fixed as 3.00 p.m. on 8-4-2010 later changed to 11.30 a.m. directing the respondents 9 and 10 to reply to the said notice. This came to be questioned in W.P.Nos.62612 of 2010 etc. before the High Court. Interim stay was granted staying further proceedings. 6. When the things stood as stated supra, on 8-4-2010 disqualification order also came to be passed by the concerned authority against the 9th and 10 respondents and the same was challenged in the present W.P.Nos.63136 to 63138 of 2010. In the said proceedings on 22-4-2010 the learned Single Judge proceeded to issue the order of stay which is impugned before us. 7. According to the learned Senior Counsel Mr. Nanjunda Reddy appearing for the appellant, the 9th respondent-T.M. Chandrashekariah ceased to be the Director of VSSBN Kududarahalu Co-operative Society as new body was elected to the said society on 19-3-2010 as he did not contest the elections. Having lost his position as elected director of the primary society, he could not continue to be a representative of that society at TAPCMS, Siruguppa. Having lost his position as elected director of the primary society, he could not continue to be a representative of that society at TAPCMS, Siruguppa. Therefore, he was disqualified to participate in the election proceedings of Bellary DCC Bank, Hospet, by virtue of Section 29-C(1)(o)(i) and (ii) of the Karnataka Co-operative Societies Act, 1959 (for short, ‘the Act’). 8. As a matter of fact, the learned Senior Counsel Mr. Raviverma Kumar representing the 9th and 10th respondents raised a preliminary objection on entertaining the present appeal on the ground that the learned Single Judge in the impugned order has reserved liberty to the appellant herein who was 9th respondent in the writ proceedings to seek modification or vacation of the order of stay and therefore, the appeals deserve to be dismissed on the said count as well. 9. Further, the learned Senior Counsel Mr. Ravivarma Kumar appearing for the 9th respondent submits that term of office of the Committee at TAPCMS was for 5 years with effect from 2008 to 2013. Therefore, irrespective of non-contesting the elections for the post of Director at VSSBN Kududarahalu Co-operative Society on 19-3-2010, the 9th respondent being the representative at TAPCMS was entitled to cast his vote to effect the delegate or the representative to the respondent 6 to the Apex Bank-respondent 7. 10. According to the learned Counsel for the appellant, so far as 10th respondent-Gadeppa is concerned, elections were held to the Bellary Kendra Sahakari Sagatu Marata Sangh i.e., Primary Society on 20-3-2010 and he lost in the said elections. Therefore, he ceased to be a director or Member of the Committee of Primary Society. Hence, he cannot continue as Member of Bellary DDC Bank-respondent 6 to cast his vote to elect the representative or delegate the 7th respondent. 11. Further the learned Senior Counsel for the respondent 10-Ravivarma Kumar submits that by virtue of the stay of the show-cause notice by 11.07 hrs. on 8-4-2010 passed by the learned Single Judge of this Court, the 3rd respondent could not have proceeded with the disqualification proceedings. Therefore, the order of disqualification is non est in the eye of law. Hence, the subsequent proceedings have no effect whatsoever either on the 9th respondent or 10th respondent. According to him severe action has to be recommended including initiation of contempt proceedings against the 3rd respondent-Joint Registrar of Co-operative Societies, Gulbarga Division, Raichur. Therefore, the order of disqualification is non est in the eye of law. Hence, the subsequent proceedings have no effect whatsoever either on the 9th respondent or 10th respondent. According to him severe action has to be recommended including initiation of contempt proceedings against the 3rd respondent-Joint Registrar of Co-operative Societies, Gulbarga Division, Raichur. It is further contended that on 12-4-2010 when elections to the post of delegate to the Apex Bank was held the appellant herein with the connivance of political leaders managed to see that respondents 9 and 10 though were directors of the Committee were prevented physically with the assistance of police from participating in the elections which is nothing short of high handedness of the parties concerned and the officials as well. Therefore, the question of entertaining the present appeal does not arise. 12. We have gone through the records and we proceed to dispose of the appeals on merits keeping in mind the submissions and the arguments addressed by the learned Senior Counsels. 13. So far as the preliminary objection raised by the learned Senior Counsel Mr. Ravivarma Kumar that the learned Single Judge had reserved liberty to the appellant to seek modification or alteration of the interim order of stay, we are of the opinion that such liberty does not take away the right of the appellant to challenge the interim order itself before the Division Bench. Therefore, the said preliminary objection is overruled. 14. Sub-section (4) of Sections 28-A and 29-C(1)(o)(i) and (ii) are relevant for the purpose of considering the present application. 15. There are other undisputed facts as well in the present cases. Though the impugned order of stay was granted on 22-4-2010 restraining the appellant from representing the 6th respondent in the proposed election to the post of President of the State Cooperative Apex Bank, by 12-4-2010 he was elected to the post of delegate/representative to the 6th respondent-Bank. Whether disqualification proceedings of the 9th and 10th respondents were justified or not and whether there was high handedness or arbitrary act on the part of the 3rd respondent herein-Joint Registrar of Co-operative Society, are matters to be decided in the writ petitions. Whether disqualification proceedings of the 9th and 10th respondents were justified or not and whether there was high handedness or arbitrary act on the part of the 3rd respondent herein-Joint Registrar of Co-operative Society, are matters to be decided in the writ petitions. So also the election of the appellant to the post of delegate or representative of the 6th respondent to represent before the Apex Bank-7th respondent, he was apparently elected on 12-4-2010 having 6 votes as against 5 votes of 11th respondent-Sri Ravindra. The so-called modus operandi and the circumstances in which the appellant alleged to have been elected against the interest of the 11th respondent for not having the support of the respondents 9 and 10 are all part of subject-matter of election petition. Such factual issues can be decided in an election petition. As already stated above, disqualification proceedings is also the subject-matter of other two writ petitions which are still pending for adjudication. 16. We have to see whether the 9th and 10th respondents were otherwise entitled to participate in the elections conducted on 12-4-2010 irrespective of disqualification order. 17. Apparently the elections to the Committee of primary society of which 9th and 10 respondents members at Kududarahalu Co-operative Society and Bellary Kendra SSM Sangha, Hospet, were held on 19th and 20th March, 2010, 9th respondent did not participate in the proceedings and 10th respondent though participated in the election lost the election. Therefore, both 9th respondent and the 10th respondent ceased to be Directors of their respective societies by 19th and 20th. Sub-section (4) of Section 28-A which reads as under refers to the term of office of a Member of the Committee for a period of 5 years: “Section 28-A. Management of Co-operative Societies vest in the Committee.-……. Therefore, both 9th respondent and the 10th respondent ceased to be Directors of their respective societies by 19th and 20th. Sub-section (4) of Section 28-A which reads as under refers to the term of office of a Member of the Committee for a period of 5 years: “Section 28-A. Management of Co-operative Societies vest in the Committee.-……. (4) Subject to the provisions of Sections 29-A and 39-A, the term of office of the members of the committee shall be five co-operative years and they shall be deemed to have vacated office as such members of the Committee on the date of completion of the said term: Provided that if an election to the Committee of any Co-operative Society had already been held in accordance with the bye-laws of such society, prior to the commencement of the Karnataka Co-operative Societies (Amendment) Act, 1997, the term of office of the committee of such co-operative society shall be three years including the cooperative year in which such election was held”. 18. Apparently, 9th respondent was deputed as a representative of the primary society of Kududarahalu to the TAPCMS Siraguppa i.e., secondary society, in the year 2008. Whether his representative status at the secondary society would still continue as on 12-4-2010 when the very directorship of primary society came to an end on 19-3-2010 when new body was elected to the primary society? A representative of primary society could be deputed only if he is a Director of the primary society. When once he ceases to be the Director of the Primary society, he remains only as an ordinary member of the society, 9th respondent would automatically cease to be the Committee Member or deputed representative of TAPCMS Siraguppa secondary society on 19-3-2010 when new body of Directors were elected to the primary society. He would enjoy his office as representative of the primary society at secondary society level as long as he continued to be the director of the primary society. Therefore, irrespective of the disqualification proceedings he could not have participated as a Committee Member of secondary Society. If at all any one from his primary society could represent at secondary society, it has to be from the newly elected body. 19. So far as 10th respondent is concerned, to the new body of Bellary Kendra Sahakari Sagatu Marata Sangha elections were held on 20-3-2010 and he lost the elections. If at all any one from his primary society could represent at secondary society, it has to be from the newly elected body. 19. So far as 10th respondent is concerned, to the new body of Bellary Kendra Sahakari Sagatu Marata Sangha elections were held on 20-3-2010 and he lost the elections. Therefore, he ceased to be the Director of the primary society. Section 29-C(1)(o)(i) and (ii) comes into play which reads as under: “Section 29-C. Disqualification for membership of the Committee.-(1) No person shall be eligible for being elected or appointed or continued as a member of the committee of any co-operative society, if.-…….. .(o) he, is in the Committee of a District Central Society or a Federal Society or an Apex Society as a representative of a Co-operative Society, and.- .(i) he ceases to be a member of the primary or secondary society which he represents; or .(ii) the society which nominated him as a representative withdraws his nomination; or …….”. The provision that is applicable is Section 29-C(1)(o)(i) insofar as 9th and 10th respondents are concerned. 20. As already stated above, appellant is elected to the post of delegate on behalf of the 6th respondent-Federal Bank to the Apex Bank. The calendar of events of the Apex Society-respondent 7 was issued as far back as on 15-3-2010. Subsequent to his election on 12-4-2010 appellant had submitted his nomination on 18-4-2010 for the post of Director at the Apex Society. There are totally 19 posts of Directors available in the 7th respondent-Apex body. Only 19 nominations were available for 19 posts. Therefore, the appellant was elected without any opposition on 20-4-2010 when nominations were taken up for scrutiny. The elections are to be held for the post of President of the respondent 7-Apex Society on 30-4-2010. By virtue of the impugned order, there is definitely an impediment for him in exercising his valuable right either to contest to the post of President or to cast his valuable vote. 21. Interim order issued now would come in the way of the process of election to the post of President of the Apex body which commenced long back. By virtue of the impugned order, there is definitely an impediment for him in exercising his valuable right either to contest to the post of President or to cast his valuable vote. 21. Interim order issued now would come in the way of the process of election to the post of President of the Apex body which commenced long back. It is well-settled by a catena of decisions of the Apex Court right from the decision in N.P. Ponnuswami v Returning Officer, Namakkal Constituency, Namakkal, Salem District and Others ( AIR 1952 SC 64 ), that when once election process is set into motion, it cannot be stalled and all the disputes concerning the said election have to be decided by filing an election petition – a post election litigation as envisaged under Section 70 of the Act. In the result therefore, the appeal is allowed in part setting aside the last portion of the interim order restraining the 7th and 8th respondents allowing the 9th respondent to represent the Federal Bank viz., BDCC Bank, Hospet, as a delegate to the proposed election for the post of President of the State Co-operative Apex Bank to be held on 30-4-2010. The appellant is entitled to participate in the proposed election to be held on 30-4-2010 to the post of President of the State Co-operative Apex Bank as representative of 6th respondent. No order as to costs.