Roopa M. , D/o. Sri. Mariyappa v. Joint Registrar Co-operative Societies Mysore Region, Mysore
2024-03-14
KRISHNA S.DIXIT, N.V.ANJARIA
body2024
DigiLaw.ai
JUDGMENT : This appeal is directed against a learned Single Judge’s order dated 20.02.2024 whereby, appellant’s W.P.No.9744 of 2023 (CS-RES) has been dismissed. As a consequence, the Karnataka Appellate Tribunal’s order dated 13.04.2023 that had set-aside her election to the Board of 3rd respondent-Co-operative Society is sustained. 2. Learned Sr. Advocate appearing for the appellant seeks invalidation of the impugned order succinctly arguing as under : (a) The learned Single Judge failed to see that the subject matter of the writ petition was not a dispute relating to the election and therefore, he ought to have held that the 1st respondent-Joint Registrar had no jurisdiction to adjudicate upon the same within the parameters of section 70 of the Karnataka Co-operative Societies Act, 1959. (b) Admittedly, appellant was a primary member of the 4th respondent-Society; although her membership had ceased during the tenure of employment, she had resigned on 18.03.2019 and on such resignation, her membership revived. Therefore, her election to the 4th respondent-Federal Society, is unassailable. (c) The disqualification under Section 17(1)(f) of the Act is not applicable to the case of appellant since she was a ‘paid employee of the Society’ during the relevant period, and (d) The 5th respondent-private party had no locus standi to raise the dispute under section 70 of the Act before the 1st respondent-JRCS and in any circumstance, he was not the party aggrieved by the subject election of the appellant. 3. Learned AGA appears for official respondent Nos.1 & 2, Sr. Advocate Mr. D.R. Ravishankar appearing for respondent No.4 supports the appeal broadly reiterating what has been argued by the appellant side. Learned Sr. Advocate appearing for the caveator/respondent No.5 i.e., private party, who happens to be a member of 6th respondent-Society opposes the appeal making submission in justification of the impugned order and the reasons on which it has been constructed. 4. BRIEF FOUNDATIONAL FACTS : (a) Appellant was a member of 4th respondent-Primary Milk Co-operative Society. This society is a constituent member of 3rd respondent-Co-operative Union. 5th respondent is a member of the 6th respondent-Co-operative Society which is also another constituent member of the said Union. Incidentally, this respondent happens to be an Ex-President of the said Union. All these respondent-Societies are governed by the provisions of 1959 Act and that they have independent bye-laws promulgated by each of them.
5th respondent is a member of the 6th respondent-Co-operative Society which is also another constituent member of the said Union. Incidentally, this respondent happens to be an Ex-President of the said Union. All these respondent-Societies are governed by the provisions of 1959 Act and that they have independent bye-laws promulgated by each of them. (b) Election to the 3rd respondent-Union was held on 8.9.2019 and the appellant along with other eleven candidates were elected as directors. 5th respondent having suffered defeat, had raised an election dispute before the 1st respondent-JRCS inter alia on the ground that the appellant on being appointed as the Secretary of 4th respondent-Society, had ceased to be its member by operation of law and therefore, her subject election was liable to be voided. This was opposed by the appellant by filing objections. On the basis of the pleadings, the JRCS held the enquiry and rejected the dispute, thereby upholding the subject election. (c) The order of the JRCS was put in Appeal No.212 of 2022 by the 5th respondent herein ad that the same came to be allowed by the Karnataka Appellate Tribunal vide order dated 13.4.2023 whereby, the order of the JRCS having been reversed, the election of the appellant herein to the 3rd respondent-Society has been set at naught. (d) The appellant herein had filed the subject writ petition challenging the above order of the Tribunal. The learned Single Judge after considering the pleadings of the parties and the submissions made on their behalf, has dismissed the same. That is how, the matter has landed at our hands. 5. We have heard the learned counsel for the parties and we perused the Appeal Papers. We have also adverted to relevant of the Rulings cited at the Bar. We decline indulgence in the matter for the following reasons : (A) AS TO LIMITATIONS ON INTRA COURT APPEALS AGAINST ARTICLE 227-ORDERS OF SINGLE JUDGES: (a) Firstly, what was challenged before the learned Single Judge was a quasi-judicial order made by the 1st respondent-JRCS under the provisions of section 70 of the 1959 Act. Though the appellant had invoked both Articles 226 & 227 of the Constitution, it was essentially under Article 227, the other Article having been ornamentally employed in her pleadings.
Though the appellant had invoked both Articles 226 & 227 of the Constitution, it was essentially under Article 227, the other Article having been ornamentally employed in her pleadings. Therefore, in the light of a Seven Judge Bench decision of this Court in TAMMANNA vs. RENUKA, 2009 SCC OnLine Kar 123, the scope of intra-court appeal is restrictive, and the findings of facts recorded in the impugned order are ordinarily to be taken as final, subject to all just exceptions. (b) A perusal of the impugned judgment shows that it has been meticulously crafted by the learned Single Judge after duly considering all aspects of the matter and therefore, there lies a heavy onus on the shoulders of the appellant to demonstrate its unsustainability and the warrant for our interference in the matter. (B) AS TO CESSATION OF MEMBERSHIP AND ITS ARGUABLE REVIVAL: (a) The submission of learned Sr. Advocate appearing for the appellant that his client was a member of 4th respondent-Society and that she was its paid employee during the period between 9.1.2015 & 18.3.2019 are not in dispute. However, his further submission that w.e.f. 19.3.2019, her membership revived after demitting the office of Secretary and therefore, she could successfully contest in the election to the 3rd respondent-Union, does not merit acceptance, in the absence of any provision in the Act or the bye-laws of the Society providing for the said eventuality being shown. Section 17 of the Act enlists the grounds of disqualification for membership. Clause (f) of sub-section (1) of section 17 makes the paid employment of a member in the said society a ground for disqualification. Sub-section (2) enacts a deeming clause for cessation of membership. It employs the term ‘…he shall be deemed to have ceased to be a member from the date when the disqualification was incurred.’ Section 18A of the Act also provides for cessation of membership. Sub-clause (iii) of clause (a) of this section mentions both ‘disqualification’ and ‘cessation’, as rightly contended by Prof. Ravivarma Kumar, learned Sr. Advocate appearing for respondent No.5. Admittedly, the appellant was in the paid employment of the society w.e.f. 9.1.2015 and demitted the office on 18.3.2019. The subject election was held on 8.9.2019 and on that date, the appellant was not an employee, is true.
Ravivarma Kumar, learned Sr. Advocate appearing for respondent No.5. Admittedly, the appellant was in the paid employment of the society w.e.f. 9.1.2015 and demitted the office on 18.3.2019. The subject election was held on 8.9.2019 and on that date, the appellant was not an employee, is true. However, in the absence of statutory revival of the membership on the cessation of employment, we do not subscribe to the view that there can be automatic revival of membership that had come to an end by a deeming clause, as rightly held by the learned Single Judge. (b) Statutory deeming is a legal assumption as to the existence or non-existence of something, regardless of the factum. The difference between deeming and presumption, is well marked. The former does not permit pleading or proof of what runs counter to such deeming, whereas the latter admits rebuttal. In a sense, deeming is an unimpeachable conclusive proof of what is deemed. Ordinarily, deeming is the prerogative of the legislature. A quasi legislative body also can do it if power to that effect has been delegated. Deeming as a presumption arises in a given set of facts. In the case at hands, deeming cessation of membership arose because of appellant becoming a paid employee of the 4th respondent-Society. A deeming provision has to be given full effect, is well settled. Whatever statute deems, has to be deemed, whether what is so deemed is factually true or not. It is true that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, must inevitably have flowed vide EAST END DWELLINGS CO. LTD. V. FINBSBURY BOROUGH COUNCIL, (1952) A.C. 109(B). Sir A.P. Herbett, in his Uncommon Law, while reporting one of his Misleading Cases, makes a Law Lord exclaim, “There is too much of the dammed deeming in our law !” Keeping all this in mind, we cannot readily agree to the argument that if the substratum on which a statute deems a certain thing, withers away, a contra deeming has to be made and as a consequence, appellant’s membership revived. That amounts to judicial organ of the State unauthorisedly expanding the precincts of a deeming clause fixed by other co-ordinate organ.
That amounts to judicial organ of the State unauthorisedly expanding the precincts of a deeming clause fixed by other co-ordinate organ. An argument to the contrary offends the principle of separation of powers which is held to be one of the Basic Features of the Constitution vide KESAVANANDA BHARATI vs. STATE OF KERALA, AIR 1973 SC 1461 , at para 292. (C) AS TO WHO SHOULD ADJUDICATE THE ISSUE OF CESSATION OF MEMBERSHIP: (a) Mr. Patil next submitted that whether one has incurred the disqualification and as a consequence thereof, ceased to be member of the society, cannot be adjudicated in an election dispute raised under section 70 of the Act. In support of this, he draws our attention to the provisions of sub-section (3) of section 17 of the Act which has the following text: “(3) If any question arises as to whether a member is deemed to have ceased or has ceased to be a member under sub-section (2) or (2A), the Registrar may either suo-motu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question.” Learned Sr. Advocate Prof. Ravivarma Kumar replies and we agree with the same that if a pure & simple question were to arise, ordinarily, it is the authority designated under the statute will have jurisdiction to decide it. However, where a dispute is raised about the election and that question too figures for consideration, then it would be incongruous to law that there should be two independent adjudicatory authorities viz., one for deciding the question of cessation of membership and the other for adjudging the validity of election of such a member. It would only lead to multiplicity of proceedings which law & justice shun. That apart, whether the appellant was a paid employee of the society during a relevant period is not in dispute at all. The appellant in her cross-examination dated 30.05.2022 has specifically admitted as to her appointment as Secretary in the said society since 2013 and resignation in 18.03.2019. Thus, from the admitted fact matrix, deeming as to cessation of membership happens by operation of law. (b) The vehement submission of learned Sr. Advocate Mr. D.R. Ravishankar appearing for the 4th respondent-Society that election dispute raised by the 5th respondent did not fit into parameters of section 70 of the Act, is bit difficult to countenance.
Thus, from the admitted fact matrix, deeming as to cessation of membership happens by operation of law. (b) The vehement submission of learned Sr. Advocate Mr. D.R. Ravishankar appearing for the 4th respondent-Society that election dispute raised by the 5th respondent did not fit into parameters of section 70 of the Act, is bit difficult to countenance. Sub-section (1) of this section employs the expression ‘any dispute touching the constitution, management or business of a Co-operative Society’. The English word ‘any’ is ordinarily of a wide import vide BALAGANESAN METALS VS. M.N. SHANMUGHAM CHETTY (1987) 2 SCC 707 . We are also mindful of what Oliver Wendell Holmes said in TOWNE V. EISNER, 245 US 418: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.” Sub-section (2) of this section enacts a broad deeming clause as to what all disputes are covered under sub-section (1). Clause (c) of sub-section 2 is again widely phrased as under: “any dispute arising in connection with the election of a President, Vice-president or any office-bearer or Member of board of the society.” Chapter IX of the Act provides for settlement of disputes; the nature & substance of disputes are delineated; a separate machinery is provided for the resolution of disputes. Section 70(1)(d) of the Act excludes the jurisdiction of all courts. The text & context of the provisions coined in this chapter unmistakably indicate the disputes arising under the Act are special by their very nature and therefore, the independent machinery has exclusive jurisdiction to decide them. This view gains support from the Full Bench decision of this court in KARNATAKA SUGAR WORKERS FEDERATION V. STATE OF KARNATAKA, 2003 SCC Online Kar 314. (c) There is yet another aspect to the matter namely, the textual version of section 17(3) vis-a-vis the language of section 70(1) of the Act. The former uses the expression ‘if any question arises’ whereas, the latter employs the term ‘if any dispute… arises’. This textual difference which the legislature has consciously maintained, cannot be bereft of any significance. A question may arise even sans a dispute and there need not necessarily be two parties for that.
The former uses the expression ‘if any question arises’ whereas, the latter employs the term ‘if any dispute… arises’. This textual difference which the legislature has consciously maintained, cannot be bereft of any significance. A question may arise even sans a dispute and there need not necessarily be two parties for that. Thus, such a question may crop up before any official functionary under the Act, there being none on the other side. However, a dispute essentially involves two parties at loggerheads. The specific question arising under section 17(3) need not be a dispute. Black’s Law Dictionary, 5th Edn., p.424 defines “dispute” as under: “Dispute.-A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined.” Viewed from this angle, the nature & scope of section 17(3) is apparently different from that of section 70(1) & (2). In a dispute, several questions may arise, does not derogate from this difference. If the question was only as to cessation of membership and nothing more, arguably the appellant would have had a case. However, what all happened in the dispute raised by the 5th respondent before the JRCS accords with the above version of Black’s Law Dictionary. Viewed from this angle, the submission of Prof. Ravivarma Kumar gains our acceptance. (D) AS TO CO-OPTION/NOMINATION OF APPELLANT TO THE MEMBERSHIP POST RESIGNATION: (a) The next submission of Mr. Jayakumar S. Patil that the appellant was nominated/co-opted as a member of the 4th respondent-Society, is again difficult to countenance and reasons for this are not far to seek: firstly, the word ‘member’ is defined in section 2(f) of the Act which has the following text: “‘Member’ means a person joining in the application for the registration of a co-operative society and a person admitted to membership after such registration in accordance with this Act, the rules and the Bye-laws and includes a nominal and an associate member”. To become a member, a person has to make an application for the registration of a Co-operative Society.
To become a member, a person has to make an application for the registration of a Co-operative Society. A requisite fee has to be paid on the said application; thereafter, he should be admitted to membership on registration in accordance with the provisions of this Act, the Rules and bye-laws of the Society. Section 18 of the Act which speaks of nominal or associate member also presupposes similar admission process. Absolutely no material is produced on record with necessary pleadings for substantiating the assertion as to how the appellant was admitted to membership by nomination/co-option after following due procedure of law. (b) An off-shoot submission that there is no dispute from the other side to the version of the appellant that she was co-opted as a member and therefore, the said issue need not be much deliberated upon, appears to be too farfetched an argument. When such a submission was made, Prof. Ravivarma Kumar at once stood up to draw our attention to the Statement of Objections wherein, parties had joined issue in this regard. Mr. Patil took us to Section 29C(1)(e) of the Act in support of his contention that despite employment of the appellant as Secretary of the Society, she would not incur disqualification. At the first blush, this submission was attractive; however, a deeper examination shows its hollowness; cessation of membership on account of incurring of a disqualification contemplated under section 17(2) is different from disqualification of membership of the Board. Section 2(b) defines 'Board' to mean the board of directors or the governing body of a cooperative society, by whatever name called, to which the direction and control of the management of the affairs of the society is entrusted to. Therefore, the protection is to a director and not to an ordinary member. Cessation of directorship need not necessarily mean the cessation of membership. However, cessation of membership will automatically result into cessation of directorship. (E) AS TO LOCUS STANDI OF THE 5TH RESPONDENT TO RAISE ELECTION DISPUTE: Both Mr. Patil and Mr. Ravishankar submitted that the 5th respondent lacked locus to raise the election dispute. According to them, he is not an aggrieved person and that such a dispute could be raised only by the respondent No.3-Union and respondent No.4-Society. We have already noted that the respondent No.4-Society and the respondent No.6-Society are the constituent members of the respondent No.3-Union.
Ravishankar submitted that the 5th respondent lacked locus to raise the election dispute. According to them, he is not an aggrieved person and that such a dispute could be raised only by the respondent No.3-Union and respondent No.4-Society. We have already noted that the respondent No.4-Society and the respondent No.6-Society are the constituent members of the respondent No.3-Union. In fact, admittedly, the subject election was for gaining entry to the Union and the appellant emerged victorious vanquishing the 5th respondent, both they being in the same fray. That being the position, contention of the kind is liable to be rejected. More is not necessary to specify and less is insufficient to leave it unsaid. In the above circumstances, this Writ Appeal being devoid of merits, is liable to be & accordingly dismissed, costs having been made easy.