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2018 DIGILAW 1139 (KAR)

A. M. KUSHALAPPA S/O A C MANDANNA v. STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF COOPERATION, VIDHANA SOUDHA, BENGALURU

2018-11-27

G.NARENDAR

body2018
ORDER : Heard Prof. Ravivarma Kumar, learned Sr.Counsel along with Sri M.R.Rajagopal, learned counsel for the petitioner in WP 39484/18 and Sri G.Krishnamurthy, learned Sr.Counsel along with Sri Chandrakanth Patil K., the learned counsel appearing for the petitioner in WP No.37225/2018 and the learned AGA for respondents. 2. Both the petitions are taken up together as common facts and common issues and of law are involved in these petitions. 3. The petitioners are aggrieved by the notice dated 14.8.2018 issued by the Joint Registrar of Cooperative Societies, Bengaluru Region, Bengaluru vide Annexure-M, who is the second respondent in the first petition and the first respondent in the second writ petition. 4. Under the said notice, the petitioners have been put on notice with regard to the gist of allegations leveled against them and calling upon them to present themselves to the enquiry proposed to be held/commenced on 25.8.2018. 5. These writ petitions came up before this Court for consideration on 6.9.2018 and it was ordered that both the petitions be listed for hearing on 10.9.2018. The learned Sr.Counsels were heard on behalf of the petitioners. It was contended that the purpose for initiating the enquiry was vitiated by mala fides. The intention of the authorities was to pass an order of disqualification and thereby prevent the petitioners from participating in the general body meeting which was scheduled to be held on 23.9.2018. 6. This Court, after perusing the papers and in order to ensure fair play, was pleased to grant an interim order of stay, staying the further proceedings pursuant to Annexure-M and thereby enabled the petitioners to participate in the general body meeting in the true spirit of democracy. 7. The other limb of contention was that, the disqualification proceedings were sought to be expedited thereby to enable the body to coopt certain defeated candidates and thereby influence the decisions in the general body meeting. 8. This Court, as stated earlier, in order to prevent miscarriage of justice, was pleased to exercise its discretionary power and thereby granted an interim order. The writ petitions lie in a narrow compass i.e. what is called in question is a notice of hearing. 9. Learned Sr.Counsel Prof. 8. This Court, as stated earlier, in order to prevent miscarriage of justice, was pleased to exercise its discretionary power and thereby granted an interim order. The writ petitions lie in a narrow compass i.e. what is called in question is a notice of hearing. 9. Learned Sr.Counsel Prof. Ravivarma Kumar appearing for the petitioners made an attempt to demonstrate the same as a case of issuance of show-cause notice and that the same being a show-cause notice, the same stands vitiated on account of vagueness and ambiguity. He would further submit that the notice does not spell out the section or the clause which the petitioners have allegedly violated. Further he would also contend that one of the allegations, that the petitioners are called upon to answer is per se contumacious in nature. He would further contend that, all the allegations leveled against the petitioners stem out of decisions taken by the Board. 10. Today, the learned Sr.Counsel Sri G.Krishnamurthy and Sri M.R.Rajagopal, learned counsel appearing on behalf of the petitioners would reiterate the contention with regard to the notice and would contend that if the petitioners’ contentions are looked into and if, the petitions are scrutinized by this Court, it would be suffice to demonstrate that the impugned notice of hearing is vitiated as no violation of statutory provision or breach of byelaws is demonstrated. 11. Learned counsel Sri M.R.Rajagopal, appearing for the petitioners would place reliance on the following rulings of the Apex Court: (i) (1993) 3 SCC 564 – Union of India and Another vs. M/s. Brij Fertilizers Pvt.Ltd., & others (para.8) (ii) (2007) 13 SCC 270 (para.31) Union of India and another vs. Vicco Laboratories (iii) (2016) SCC 223 (para.4) – Deputy Commissioner, Central Excise and another vs. Sushil and Company. 12. It is relevant to extract para.8 of the decision reported in (1993) 3 SCC 564 – Union of India and Another vs. M/s. Brij Fertilizers Pvt.Ltd., & others for the present purpose. “8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded form issuing show cause notice and requiring the manufacturers to appear and explain their claim. “8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded form issuing show cause notice and requiring the manufacturers to appear and explain their claim. It was urged that the High Court was not justified in quashing the show cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order. True, the High Court should normally not interfere at the stage of show cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of' which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various accounts and have virtually closed their unit. We are pained to say that the authorities did not realize either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed. Entire litigation appears to he a sad plight for those who have set up small scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilizers is much more than the price fixed by the Government for which it assured to pay subsidy.” 13. With regard to the first case, the same can be distinguished on facts alone. In the said case, the Apex Court was dealing with a show-cause notice. In the instant case, neither there is any show cause notice nor does the impugned notice propose imposition of any penalty. The act mentioned therein is the holding of a hearing and that apart, a broad outline of the allegations are stated and date of hearing fixed is 25.8.2018. In the instant case, neither there is any show cause notice nor does the impugned notice propose imposition of any penalty. The act mentioned therein is the holding of a hearing and that apart, a broad outline of the allegations are stated and date of hearing fixed is 25.8.2018. Mere repetition or reproduction of allegations would not constitute a ground to construe the same as a show-cause notice. 14. A Show-cause notice and a notice of hearing cannot be equated and do not stand on the same pedestal. It cannot be disputed that a show cause notice can be effected or caused only if permitted under the statute and a careful reading of the Cooperative Societies Act, 1959 particularly Section 29-C does not mandate issuance of show-cause notice. Further, from a reading of the provisions of subsection (7) and proviso to subsection (8), what one can discern and what is apparent is that, the provision mandates an opportunity of being heard. The impugned notice is apparently in compliance with the mandate of the provision as the petitioners have been called upon to submit their defence along with the supporting documents on the date of hearing stated therein. 15. Hence, the contention that the said notice has to be construed as a show-cause notice and hence it has to be held that the notice stands vitiated on the basis of ambiguity or vagueness must necessarily fail. The said contention has no legs to stand on. Issuance of or right to a Show-cause notice can only be a concession by the legislature under a Statute. Unlike situations where the Court reads into the statute, a right of being heard in compliance of the principles of natural justice, the Court cannot confer a right which is not provided under the statute. If a statute does not provide for a right by way of a show cause notice, it is not open for this Court to read into the Act a right which is not conferred by the Legislature. 16. As regards the second ruling, the same is under a taxing statute which mandates show cause notice. So also the third ruling. Hence, law laid down by the Hon’ble Apex Court in the aforesaid rulings are inapplicable to the facts of the case on hand. 16. As regards the second ruling, the same is under a taxing statute which mandates show cause notice. So also the third ruling. Hence, law laid down by the Hon’ble Apex Court in the aforesaid rulings are inapplicable to the facts of the case on hand. The notice being mere notice of hearing, the attempt by the learned counsel to equate the same or to demonstrate the same as show cause notice must necessarily fail and accordingly, the writ petitions are liable to be rejected. It is made clear, the petitions are not disposed of on merits and all contentions are left open to be adjudicated by the concerned authority. The writ petitions are disposed of accordingly.