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2012 DIGILAW 13 (KAR)

P. Gadeppa v. State of Karnataka

2012-01-04

S.ABDUL NAZEER

body2012
Judgment :- Abdul Nazeer, J 1. The main question for consideration in these writ petitions is whether a Director of a primary Co-operative Society, who represents the said society in a Federal Society ceases to be a member of the Federal Society when he ceases to be the Director of the Co-operative Society which he represents? 2. Brief facts of the case are as under: P. Gadeppa, the petition in W.P.No.62612/2010 is a primary member of Bellary District Central Co-operative Wholesale Stores, Bellary. He was also the elected Director of the said society. He was in the committee of BDCC Bank as a delegate of BDCC Wholesale Stores. He was defeated in the election held to the committee of BDCC Wholesale Stores on 20.3.2010. T.M. Chandrashekariah, the petitioner in W.P.No.62613/2010 is a primary member of Kududarahalu Vyavasaya Seva Sahakara Sangha Niyamitha. He was elected as the Director of the said society. He had come to the TAPCMS Ltd., Siraguppa, as a representative of Kududarahalu VSSSN, Siraguppa Taluk and thereafter, he has come to BDCC Bank as a delegate of Siraguppa TAPCMS. His term as a Director of Kududarahalu VSSSN has expired on 30.3.2010. He did not contest the election for the post of the Director of Kududarahalu VSSSN held on 19.3.2010. 3. The BDCC Bank is a Federal Society at the District Level comprising of Co-operative Societies in the District as its members. It is a member of the Karnataka State Cooperative Apex Bank, Bangalore, which is an Apex Society at the State Level comprising all the District Central Co-operative Banks in the State as its members. The petitioners were elected to the committee of management of the BDCC Bank held on 26.3.2008 for a period from 2008-2009 to 2012-2013. The Apex Bank issued a Notification dated 23.3.2010 for the election of its President. As per the said notification, each District Central Co-operative Bank has to send one of its Directors as its representative to the Apex Bank. The BDCC Bank called a meeting on 12.4.2010 for the election of its representative in the Apex Bank. It is contended that in the backdrop of election to the Apex Bank, the Joint Registrar of Co-operative Society, Gulbarga Division, Raichur, issued show-cause notices to P. Gadeppa and T.M. Chandrashekariah under Section 29-C(1)(o)(i) of the Act for their disqualification and fixed the date of hearing on 8.4.2010. It is contended that in the backdrop of election to the Apex Bank, the Joint Registrar of Co-operative Society, Gulbarga Division, Raichur, issued show-cause notices to P. Gadeppa and T.M. Chandrashekariah under Section 29-C(1)(o)(i) of the Act for their disqualification and fixed the date of hearing on 8.4.2010. They apprehended that the Joint Registrar may disqualify them on or before 9.4.2010 and prevent them from participating in the election, which is scheduled to beheld on 26.4.2010. That is why they have filed W.P.Nos.62612/2010 and 62613/2010 challenging the show-cause notices referred to above. 4. W.P.Nos.63136-63138/2010 are filed by T.M. Chandrashekariah, P. Gadeppa and M.P. Ravendra contending that in the writ petitions filed by them challenging the show-cause notices, an interim order was passed on 8.4.2010 at 11.07 A.M. This was brought to the notice of the Joint Registrar at 11.15 A.M. Fax message sent to the Joint Registrar reached at 12.05 P.M. However, the Joint Registrar has passed the orders ofdisqualification in violation of the said interim order. It is further contended that they were not aware of the said order. On 12.4.2010, when they went to the Office of the Joint Registrar to participate in the meeting to elect a representative to the Apex Bank. At 11.00 A.M., the Deputy Registrar of Co-operative Societies, Bellary, came to the BDCC Bank alongwith goondas and the Police asked them not to attend the meeting. They were served with the orders of disqualification said to have been passed on 8.4.2010. They were thrown out of the BDCC Bank premises preventing them from attending the meeting. Therefore, they have challenged the validity of the order at Annexures ‘A’ and ‘B’ dated 8.4.2010 disqualifying petitioner Nos.1 and 2 from the post of the Director of the BDCC Bank for a period of five years and for certain other reliefs. 5. Respondent Nos.1, 2 and 4 have filed their objections contending that the petitioners are disqualified under Section 29-C(1)(o)(i) read with Section 21(2)(a) of the Act for a period of five years because the first petitioner is not the Director of Kududarahalu VSSSN, Siraguppa Taluk, for the reason that he had not contested in the election held on 19.3.2010. Thus, he ceases to be the Director of Kududarahalu VSSSN with effect from 1.4.2010. Thus, he ceases to be the Director of Kududarahalu VSSSN with effect from 1.4.2010. He was representing Kududarahalu VSSSN in the committee of TAPCMS, Siraguppa and thereafter, he was in the committee of BDCC Bank, Hospet, as a delegate of TAMPCMS, Siraguppa. Since the first petitioner ceased to be a member of Kududarahalu VSSSN, he became ineligible to continue in the committee of TAMPCMS, Siraguppa as well as in the committee of the BDCC Bank. The second petitioner was continuing in the committee of the BDCC Bank as a delegatee of Bellary District Central Co-operative Wholesale Stores, Bellary. An election was held on 20.3.2010 to elect the Directors of the said society. The second petitioner was defeated in the election. Thus, he ceased to be the director of the society with effect from 1.4.2010. Therefore, he is also not eligible to continue in the committee of the BDCC Bank w.e.f. 1.4.2010. Respondent No.2 initiated proceedings against petitioner Nos.1 and 2 on the basis of the complaint given by the members of the public. Respondent No.2 issued notices to petitioner Nos.1 and 2 dated 29.3.2010 directing them to show-cause as to why they should not disqualified from the committee of the BDCC Bank as they ceased to be the Directors of the society, which they were representing w.e.f. 1.4.2010. The first petitioner was asked to appear before the second respondent on 8.4.2010 at 3.00 P.M. and file reply, if any, to the show-cause notice. The second petitioner was asked to appear on 8.4.2010 at 11.00 A.M. Thereafter, the working hours of the Government Offices in Gulbarga, Raichur, Bellary, Bidar, Koppal, Bijapur and Bagalkot Districts of Belgaum Region was changed because of the summer season for two months w.e.f. 1.4.2010 vide Government Notification dated 31.3.2010. The changed timing was from 8.00 A.M. to 1.30 P.M. However, by the time the notification was received, the notices dated 29.3.2010 were sent to petitioner Nos.1 and 2. After receipt of the said notification, the time fixed for enquiry on 8.4.2010 at 3.00 P.M. was advanced to 11.00 A.M. in so far as the first petitioner is concerned. Petitioner Nos.1 and 2have appeared before the Joint Registrar on 8.4.2010 and filed their objections to the notice dated 29.3.2010. After receipt of the said notification, the time fixed for enquiry on 8.4.2010 at 3.00 P.M. was advanced to 11.00 A.M. in so far as the first petitioner is concerned. Petitioner Nos.1 and 2have appeared before the Joint Registrar on 8.4.2010 and filed their objections to the notice dated 29.3.2010. Having regard to the fact that petitioner Nos.1 and 2had ceased to be the Directors of TAPCMS, Siraguppa and Bellary district Central Cooperative Wholesale Stores, Bellary, respectively w.e.f. 1.4.2010, they were ineligible to continue in the committee of the BDCC Bank from the said date. Therefore, the second respondent passed orders dated 8.4.2010 disqualifying them from the committee of the BDCC Bank for a period of five years. 6. Respondent No.3 has filed her statement of objections denying that she has acted under any political compulsion with a view to help the ruling Government in Karnataka. The pre-ponement of time for hearing of the matter was done in terms of the Official Memorandum dated 30.3.2010 issued by the Government wherein the office timings relating to Gulbarga Division was changed to 8.00 a.m. to 1.30 p.m. She has denied the knowledge of filing of writ petitions in Nos.62612/2010 and 62613/2010 by petitioner Nos.1 and 2 and the Government Advocate had informed the second respondent about the interim order passed by the High Court at 11.07 a.m. It is contended that the petitioners had appeared on 8.4.2010 and had filed objections. It is further contended that she has received Annexure ‘P’ order after 12.30 p.m. on 8.4.2010. By that time, the enquiry has been concluded and the impugned order has been passed. 7. In W.P.Nos.63136-63138/2010, this Court has passed an order dated 22.4.2010 restraining respondent Nos.7 and 8 from allowing respondent No.9 to represent BDCC Bank, in the proposed election to beheld on 26.4.2010 for the post of the President of the Apex Bank. The said order was challenged by the 9th respondent in W.A.Nos.1801/2010 and 1806-1807/2010. The Division Bench of this Court by order dated 29.4.2010 has set aside the last portion of the interim order restraining the Managing Director and Election Officer of the Apex Bank and allowing Chokka Basavanna Gowda to present the BDCC Bank while electing the President of the Apex Bank. 8. The Division Bench of this Court by order dated 29.4.2010 has set aside the last portion of the interim order restraining the Managing Director and Election Officer of the Apex Bank and allowing Chokka Basavanna Gowda to present the BDCC Bank while electing the President of the Apex Bank. 8. Learned Counsel for the petitioners would contend that the show cause notices dated 29.3.2010 were issued to P. Gadeppa and T.M. Chandrashekariah, for their disqualification under the political compulsion with an ulterior motive to help the ruling party. Despite the grant of an interim order dated 8.4.2010, the Joint Registrar has proceeded to pass the orders dated 8.4.2010 disqualifying them as the Directors of the BDCC Bank. It is argued that having regard to the interim order passed in W.O.Nos.62612/2010 and 62613/2010 dated 8.4.2010 at 11.07 a.m., which was informed to the Joint Registrar, she has passed the order disqualifying P. Gadeppa and T.M. Chandrashekariah. They were not permitted to vote in the election held on 26.4.2010. He has drawn my attention to the decision of the Apex Court in MULRAJ VS MURTI RAGHUNATHJI MAHARAJ- AIR 1967 SC 1386 and ALL BENGAL EXCISE LICENSEES ASSOCIATION VS RAGHABENDRA SINGH AND OTHERS- 2007 (11) SCC 374 and certain other cases to support his contention that once it is found that the respondent has disobeyed the earlier order, this Court has to direct the contemnors to undo the wrong committed by them. It is further submitted that the petitioners continued to be the members of the Primary Co-operative Societies. There is no bar for them to continue in the committee of a District Central Society or a Federal Society or an Apex Society, having regard to Section 29-C(1)(o)(i) of the Act. Therefore, they are entitled to participate in the meeting of the BDCC Bank for the election of a representative to participate in the election of the President of the Apex Bank. 9. On the other hand, Sri. K.M. Nataraj, learned Additional Advocate General, appearing for the official respondents submits that T.M. Chandrashekaraiah was not elected to the committee of Kududarahalu VSSSN, held on 19.3.2010. He has ceased to be the Director of the Kududarahalu VSSN, from 1.4.2010. Therefore, he is ineligible to continue as the Director of the TAPCMS as well as the BDCC Bank, Bellary. K.M. Nataraj, learned Additional Advocate General, appearing for the official respondents submits that T.M. Chandrashekaraiah was not elected to the committee of Kududarahalu VSSSN, held on 19.3.2010. He has ceased to be the Director of the Kududarahalu VSSN, from 1.4.2010. Therefore, he is ineligible to continue as the Director of the TAPCMS as well as the BDCC Bank, Bellary. P. Gadeppa was in the committee of BDCC Bank as a delegate of the District Central Cooperative Society, Wholesale Stores, Bellary. He was defeated in the election held on 20.3.2010 for the Directorship of the said Society. Thus, he ceased to be the Director of the said society from 1.4.2010. He cannot represent a primary society in the BDCC Bank. The Directorship in a society is the primary eligibility prescribed under Section 21(2)(a) of the Act, for being sent as a delegate to another co-operative Society. It is further argued that there is no conflict between Sections 29-C(i)(o)(i) and 21(1) and (2) (a) of the Act. Even if there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible effect should be given to both. 10. Sri. Nanjunda Reddy learned Senior Counsel for respondent No.9 contends that W.P.Nos.62612/2010 and 62613/2010 are filed challenging the show cause notices. T.M. Chandrashekaraiah and P. Gadeppa have filed objections to the said show cause notices. The Joint Registrar has passed an order of disqualification after affording them an opportunity of being heard. An alternative remedy is available to the petitioners to challenge the said order under Section 70 of the Act. Therefore, W.P.Nos.62612/2010 and 62613/2010 are liable to be dismissed on that ground alone. It is further argued that before the service of the interim order in W.P.Nos.62612/2010 and 62613/2010, the Joint Registrar has passed the impugned order on 8.4.2010 disqualifying P. Gadeppa and T.M. Chandrashekaraiah. It is contended that the said order does not call for interference. 11. Learned Counsel for respondent No.3 submits that the Joint Registrar has passed the order of disqualification before the service of the interim orders granted in W.P.Nos.62612/2010 and 62613/2010. There are no infirmities in the said order. 12. Having regard to the contentions urged, the first question for consideration is whether this Court should exercise its jurisdiction in spite of availability of an alternative remedy to challenge the order impugned in W.P.Nos.63136/2010-63138/2010? There are no infirmities in the said order. 12. Having regard to the contentions urged, the first question for consideration is whether this Court should exercise its jurisdiction in spite of availability of an alternative remedy to challenge the order impugned in W.P.Nos.63136/2010-63138/2010? In W.P.Nos.62612/2010 and 62613/2010, the petitioners have challenged the validity of the show cause notices. Thereafter, the orders have been passed by the Joint Registrar which are under challenge in W.P.Nos.63136/2010-63138/2010. It is true that the orders at Annexures ‘A’ and ‘B’ impugned in W.P.Nos.63136/2010-63138/2010 can be challenged by raising a dispute under Section 70 of the Act. Rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In appropriate cases, in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction. The outcome of the cases mainly depends upon the interpretation of Sections 21(2)(a) and 29-C(1)(o)(i) of the Act. In the circumstances, it is not just and proper to dismiss the writ petitions on the ground of availability of alternative remedy. 13. That brings me to the next question as to whether the orders passed by the Joint Registrar disqualifying the petitioners from the Directorship of the BDCC Bank is valid? Section 21(2)(a) of the Act authorises the committee of a Co-operative Society which is a member of another Co-operative Society to appoint one of the members of its committee to vote on its behalf in the affairs of that other society. Section 29-C(1)(o)(i) states that if a member who is in the committee of District Central Society or a Federal Society or an Apex Society as a representative of a Co-operative Society is not eligible for being elected, appointed or continued as a member of the committee of the said Cooperative Society, if he ceases to be a member of the primary or secondary society, which he represents in the District Central Society or a Federal Society or an Apex Society. Therefore, the question for consideration is whether a Director of a primary Cooperative Society, who represents the said Society in a Federal Society ceases to be the member of the Federal Society when he ceases to be the Director of the Primary Society, which he represents? 14. Therefore, the question for consideration is whether a Director of a primary Cooperative Society, who represents the said Society in a Federal Society ceases to be the member of the Federal Society when he ceases to be the Director of the Primary Society, which he represents? 14. Chapter III of the Karnataka Co-operative Societies Act, 1959, provides for eligibility criteria to become members of Co-operative Societies and their rights and liabilities. It also provides for disqualification for membership, cessation of membership, etc. Section 21 of the Act lays down manner of exercising vote at a general meeting or an election of the members of the committee of a co-operative society. The said section reads as under: “Section 21. Manner of exercising vote: (1) every member, every delegate and every nominee shall exercise his vote in person and not by proxy at a general meeting or an election of the members of the committee of a co-operative society.” Sub-section (2) of Section 21 starts with a non obstante clause, which is as under: “(2) Notwithstanding anything contained in Sub-section (1), (a) the committee of a Co-operative Society which is a member of another Co-operative Society may appoint one of the members of the committee to vote on its behalf in the affairs of that other society. Provided that where a new committee has been elected to a co-operative Society, such newly elected committee shall send a delegate or nominee to any other co-operative society where it is a member.” 15. Chapter IV of the Act provides for the management of Co-operative Societies. It contains Section 29-C, which provides for disqualification of membership of the committee. The relevant provision is sub-section (1)(o)(i) of Section 29-C, 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, (a) to (n) xxx xxx xxx (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.” 16. It is well established principles of law that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be interpreted that, if possible effect should be given to both. This is the essence of the rule of ‘harmonious construction’. The Courts have also to keep in mind that an interpretation, which reduces one of the provisions as a ‘dead letter’ or ‘useless lumber’; is not harmonious construction. To harmonise is not to destroy any statutory provision or to render it otiose. (See SULTANA BEGAM VS. PREM CHAND JAIN – AIR 1997 SC 1006 ). 17. As has been stated earlier, Chapter III of the Act provides for the eligibility criteria to become the members of the Co-operative Societies, their rights and liabilities. Section 16 of the Act lays down the criteria for becoming the member of a Co-operative Society. The said Chapter also provides for cessation of membership, rights of a member to vote in the general meeting or in the election of members of the committee of the Cooperative Society. Section 21 of the Act provides for the manner of exercising vote. Sub-Section (1) of Section 21 of the Act states that every member, every delegate and every nominee shall exercise his vote in person and not by proxy at a general meeting or an election of the members of the committee of a Co-operative Society. Sub-section (2)(a) of Section 21 states that notwithstanding anything contained in sub-section (1), the committee of a Co-operative Society which is a member of another Co-operative Society may appoint one of the members of the committee to vote on its behalf in the affairs of the other society. In other words, a Director of a Co-operative Society alone can be authorised to vote on its behalf in the affairs of the other Co-operative Society. Proviso to this Section states that where the new committee has been elected to a Cooperative Society, such newly elected committee shall send a delegate or nominee to any other Co-operative Society where it is a member. Thus, where a committee is newly elected to a Co-operative Society, it can send a delegate or a nominee, who should be a Director of the said Co-operative Society to any other Co-operative Society where it is a member. Thus, where a committee is newly elected to a Co-operative Society, it can send a delegate or a nominee, who should be a Director of the said Co-operative Society to any other Co-operative Society where it is a member. Section 29-C(1)(o)(i) contains one of the disqualifications for the membership of a District Central Society, a Federal Society and an Apex Society. It states that whenever a member of a primary or a secondary member of a co-operative society, which he represents in the committee of District Central Society or a Federal Society or an Apex Society, he ceases to be a representative of the said Co-operative Society, when he ceases to be a member of the primary or a secondary Co-operative Society, which he represents. These two provisions have to be read harmoniously so that effect should be given to both. In order to be a Director of a Co-operative Society, the first condition is that he should be a member of the said society. Once he ceases to be a member, naturally, he ceases to be a Director of the said society. Consequently, he ceases to be the representative of the society in the committee of a District Level Central Society or a Federal Society or an Apex Society. Section 21(2)(a) authorises a Co-operative Society to appoint one of its Directors to vote in its behalf in the affairs of the other Society wherein it is a member. Once he ceases to be a Director of a Primary Society, he cannot remain as a representative of the said Society in a Federal Society. A conjoint reading of the above provisions makes it clear that a Director of a Primary Co-operative Society, who represents the said society in a Federal Society as a delegate or a nominee of the primary society ceases to be the delegatee or nominee when he ceases to be the Director of the Society which he represents. Consequently, he loses the right to vote on its behalf in the affairs of the other society. 18. It is clear that T.M. Chandrashekariah is a primary member of a Co-operative Society, namely, Kududarahalu VSSSN. He was the elected Director of the said society. He was deputed to TAPCMS Ltd., Siraguppa, as a representative of Kududarahalu VSSSN, Siraguppa. He was a delegatee from TAPCMS Ltd., Siraguppa at the BDCC Bank. 18. It is clear that T.M. Chandrashekariah is a primary member of a Co-operative Society, namely, Kududarahalu VSSSN. He was the elected Director of the said society. He was deputed to TAPCMS Ltd., Siraguppa, as a representative of Kududarahalu VSSSN, Siraguppa. He was a delegatee from TAPCMS Ltd., Siraguppa at the BDCC Bank. His term as a Director of Kududarahalu VSSSN has expired on 30.3.2010. On 19.3.2010, a new body of Directors were elected to the Primary Society. Thereafter, he automatically ceases to be a deputed representative of TAPCMS, Siraguppa and the delegatee at the BDCC Bank, though he continued to be the member of the primary society. Similarly, P. Gadeppa has ceased to be the Director of Bellary District Central Co-operative Wholesale Stores. He was in the committee of BDCC Bank as a delegatee of the said society. He was defeated in the election held to the committee of the Bellary District Central Co-operative Wholesale Stores on 20.3.2010. Therefore, he cannot represent the primary society in the BDCC Bank despite his continuation as a member of the primary society. 19. The contention of the petitioners that in spite of the service of the interim order dated 8.4.2010 passed in W.P.Nos.62612/2010 and 62613/2010, the Joint Registrar was not justified in passing the impugned orders, is without any merit. It is true that the 1st petitioner was issued with a notice by the Joint Registrar requiring his appearance on 8.4.2010 at 3.00 p.m. It was preponed to 11.00 a.m. from 3.00 p.m., as the office timings of the Government departments was changed to 8.00 a.m. to 1.30 p.m. as per official memorandum issued by the Government in view of the beginning of the summer in April. A notice was issued to the 1st petitioner on 7.4.2010 informing him the change of timings. The petitioners have filed their objections to the show cause notices. It is not in dispute that petitioner Nos.1 and 2 have ceased to be the Directors of the Primary Co-operative Societies, which they were representing in the BDCC Bank. In view of the admitted position, the Joint Registrar has passed a short order of disqualification. There is merit in the contention of the Joint Registrar that she has passed the orders at Annexures ‘A’ and ‘B’ dated 8.4.2010 before the communication of the interim order. I do not find any infirmity in the said orders requiring interference. 20. In view of the admitted position, the Joint Registrar has passed a short order of disqualification. There is merit in the contention of the Joint Registrar that she has passed the orders at Annexures ‘A’ and ‘B’ dated 8.4.2010 before the communication of the interim order. I do not find any infirmity in the said orders requiring interference. 20. In MULRAJ’s case (supra), the Apex Court has held that an order of injunction is generally issued a party. In the case of a stay order, it is addressed to the Court and prohibits it from proceeding further as soon as the Court has knowledge of the order. In ALL BENGAL EXCISE LICENSEES ASSOCIATION’s case (supra), the Apex Court has held that once it is found that the respondent has disobeyed the earlier order, this Court has to direct the contemnors to undo the wrong committed by them. These decisions have no application to the facts of this case because the Joint Registrar has passed the impugned orders before the service of the interim orders. There is no merit in these writ petitions. They are accordingly dismissed. 21. In view of dismissal of the writ petitions as above, Misc.W.Nos.63073/2010, 62848/2010, 62665/2010 and 61884/2010 do not survive for consideration. They are accordingly dismissed. No costs.