Sri R M Manjunath Gowda vs The State Of Karnataka
2023 Latest Caselaw 1235 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                   R
       DATED THIS THE 9TH DAY OF FEBRUARY 2023

                      PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

           W.A. No.1396 OF 2021 (CS-EL/M)
                          IN
           W.P. No.12096 OF 2020 (CS-EL/M)

BETWEEN:

SRI. R.M. MANJUNATH GOWDA
S/O RAMAPPA GOWDA
AGED ABOUT 62 YEARS
DIRECTOR/PRESIDENT DCC BANK
SHIMOGGA, R/O KARAKUCCHI POST
SHIRIGERE TQ, SHIMOGGA DIST
SHIMOGGA-577 211.
                                   ... APPELLANT

(BY MR. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
    MR. MOHAMAD TAHIR A, ADV.,)

AND:


1.     THE STATE OF KARNATAKA
       DEPARTMENT OF CO-OPERATION
       VIDHAN SOUDHA
       BENGALURU -560001
       REP. BY ITS PRINCIPAL SECRETARY.
                       2




2.   REGISTRAR OF CO-OPERATIVE SOCIETIES
     NO.1, ALI ASKAR ROAD
     BENGALURU-560052.

3.   THE JOINT REGISTRAR OF CO-OPERATIVE
     SOCIETIES, BANGALORE REGION
     BENGALURU, MALLESWARAM
     SAHAKARA SOUDHA, MYSORE ROAD
     8TH CROSS, MALLESWARAM
     BENGALURU-560003.

4.   THE JOINT REGISTRAR OF CO-OPERATIVE
     SOCIETIES AND MANAGING DIRECTOR
     CHITRADURGA DCC BANK
     CHITRADURGA DISTRICT
     CHITRADURGA-577501.

5.   THE SHIMOGGA DISTRICT CENTRAL CO-
     OPERATIVE BANK LIMITED
     BALRAJ URS ROAD
     SHIMOGGA -577201
     REP BY ITS MANAGING DIRECTOR/CEO.

6.   RETURNING OFFICER
     SRI. NAGESH HONNALLI
     PROJECT DIRECTOR
     URBAN DEVELOPMENT CELL
     DEPUTY COMMISSIONER OFFICE
     SHIMOGGA-577 201.

7.   THE STATE CO-OPERATIVE
     ELECTION AUTHORITY
     3RD FLOOR, T.T.M.C. A BLOCK
     SHANTI NAGAR
     BANGALORE-560027
     REPRESENTED BY ITS SECRETARY.
                        3




8.   SRI. B.K. GURURAJ
     S/O HARI BASAPPA
     JAKKIAO KOPPA, SHIKARIPUR TALUK
     SHIMOGA, KARNATAKA-577427
     (AMENDED AS PER ORDER DTD:31.3.2022).

                                 ... RESPONDENTS

(BY MR. PRABHULING K. NAVADGI, AG A/W
    MR. R. SUBRAMANYA, AAG &
    MR. B. RAJENDRA PRASAD, HCGP FOR R4 & R6
    MR. ASHOK HARANAHALLI, SR. COUNSEL FOR
    MR. VINAYAKA B, ADV., FOR R5
    MR. KIRAN KUMAR, ADV., FOR R7
    MR. ADITYA DIWAKARA, ADV., FOR R8)

                      ---

     THIS WRIT APPEAL IS FILED U/S 4 OF THE

KARNATAKA HIGH COURT ACT PRAYING TO ALLOW

THIS APPEAL, BY SETTING ASIDE THE ORDER DATED

17/11/2021 IN WRIT PETITION NO.12096/2020 BY THE

LEARNED SINGLE JUDGE, AND ALLOW THE PRAYER

MADE IN WRIT PETITION NO.12096/2020.


     THIS WRIT APPEAL HAVING BEEN HEARD AND

RESERVED FOR JUDGMENT ON 07.02.2023, COMING

ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,

ALOK ARADHE J., DELIVERED THE FOLLOWING:
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                      JUDGMENT

This intra court appeal emanates from an order

dated 17.11.2021 passed by Learned Single Judge by

which writ petition preferred by the appellant has

been dismissed and order dated 14.10.2020 passed by

Joint Registrar, Co-operative Societies disqualifying

the appellant from continuing in any post in District

Central Co-operative Bank, Shimogga (hereinafter

referred to as 'the DCC' for short) has been upheld.

2. Facts giving rise to filing of this appeal

briefly stated are that appellant is an elected Director

and President of DCC, Shimogga. The appellant was

disqualified by an order dated 14.07.2020 passed by

Joint Registrar, Cooperative Societies, Bengaluru.

The said order was challenged by the appellant in a

writ petition viz., W.P.No.8891/2020 inter alia on the

ground that it is a product of unfair procedure

followed by Joint Registrar, Cooperative Societies,

Bengaluru. At the time of hearing of the petition,

learned Advocate General stated that the order of

disqualification be set aside and the matter be

remitted to any of the four joint registrars mentioned

in the memo. Learned Senior Counsel for the

appellant stated before the Learned Single Judge that

the Learned Single Judge may in its discretion choose

any one of the four joint registrar's and the matter be

remitted. In the light of aforesaid submission, the

Learned Single Judge by an order dated 14.08.2020

set aside the order of disqualification of the appellant

dated 14.07.2020 and directed that an enquiry shall

be conducted by the Joint Registrar, Cooperative

Societies and Managing Director of DCC, Chitradurga

within six weeks. All contentions of the parties were

kept open.

3. The said order was challenged in an appeal

by the appellant viz., W.A.No.459/2020, which was

disposed of by an order 22.09.2020. However, the

direction pertaining to fresh enquiry by Joint

Registrar, Cooperative Societies, (hereinafter referred

to as 'JRCS' for short) Chitradurga was upheld. After

remand, the JRCS, Chitradurga by an order dated

14.10.2020 disqualified the appellant from continuing

on any post in the DCC Bank for a period of five years.

Pursuant to the aforesaid order, the State Cooperative

Election Authority passed a consequential order on

20.10.2020.

4. The appellant challenged the aforesaid

order in a writ petition before the Learned Single

Judge. The Learned Single Judge by an order dated

17.11.2021 inter alia held that appellant did not raise

the issue with regard to jurisdiction of JRCS,

Chitradurga, either before the Learned Single Judge

or before the division bench in the earlier round of

litigation. It was further held that the appellant was

sitting on the fence and waiting for the outcome of the

enquiry and by his conduct has disentitled himself to

make grievance with regard to jurisdiction of JRCS,

Chitradurga to pass an order of disqualification in this

writ petition. It was also held that raising the issue of

jurisdiction after having participated in the

proceeding amounts to abuse of the process and

judicial estoppel is a part of doctrine of equitable

estoppel. The Learned Single Judge opined that the

appellant has a remedy of an appeal under Section

106(1)(d-2) of the Karnataka Cooperative Societies Act,

1959 (hereinafter referred to as 'the Act' for short).

Accordingly, the writ petition preferred by the

appellant was dismissed. However, liberty was

reserved to the appellant to avail of the alternate

remedy. In the aforesaid factual background, this

appeal has been filed.

5. Learned Senior Counsel for the appellant

while inviting the attention of this court to the orders

dated 14.08.2020 and judgment dated 22.09.2020

passed in W.P.No.8891/2020 and

W.A.No.459/2020 respectively submitted that the

appellant had not given any consent for remanding

the matter to JRCS, Chitradurga. It is further

submitted that JRCS, Chitradurga is not a Joint

Registrar for the purposes of the Act as no notification

under Section 2-A(5) of the Act has been issued in his

favour. It is also urged that merely because JRCS,

Chitradurga holds the post of Joint Registrar, the

same does not confer any jurisdiction on him to pass

the order under Section 2-A(5) of the Act.

6. It is contended that court cannot confer

jurisdiction on an authority and the expression

"jurisdiction" connotes authority to act officially. It is

further contended that the impugned order passed by

the joint Registrar is per se without jurisdiction and

therefore the appellant cannot be relegated to avail of

the alternative remedy of appeal. It is also urged that

appellant has been elected again as a director in the

year 2019 and since, he was previously disqualified,

again cannot be disqualified on the same grounds.

7. It is argued that action under section 29-

C(8) of the Act can be taken against the appellant in

respect of the acts "during the term of office". It is

also argued that impleading applicant has no locus to

intervene in the matter. In support of aforesaid

submissions, reliance has been placed on decisions in

'WHIRPLOOL CORPORATION V/S. REGISTRAR OF

TRADEMARKS MUMBAI AND OTHERS', (1998) 8

SCC 1, 'RAM AND SHYAM COMPANY VS STATE OF

HARYANA AND OTHERS', (1985) 3 SCC 267, 'A.R.

ANTULAY VS R.S NAYAK AND ANOTHER', (1988) 2

SCC 602, 'NUSLI NEVILLE WADIA VS IVORY

PROPERTIES AND OTHERS', (2020) 6 SCC 557,

'HARSHAD CHIMAN LAL MODI V. DLF UNIVERSAL

LTD.', (2005) 7 SCC 791,CHIEFENGINEER, HYDEL

PROJECT AND ORS V. RAVINDER NATH AND ORS

(2008) 2 SCC 350, 'POONAM VS. STATE OF U.P.',

(2016) 2 SCC 779, 'MAGADH SUGAR & ENERGY

LTD., VS. STATE OF BIHAR AND OTHERS', (2021)

SCC ONLINE SC 801, and decision of learned Single

Judge of this Court in 'C.S. MOHAN VS. STATE OF

KARNATAKA', ILR 1979 KAR 1757.

8. On the other hand learned Advocate

General submitted that the appellant was disqualified

for the first time on 08.12.2016. He challenged the

aforesaid order in W.P. No.63355/2016 which was

decided by an order dated 17.11.2021, by the learned

single Judge. It is point out that the appellant was

relegated to avail of the remedy of appeal by learned

single Judge. In pursuance of the order passed by

learned single judge the appellant filed an appeal

which was allowed by JRCS by an order dated

13.5.2022. Therefore on the same facts different view

cannot be taken. It is contended that order in the writ

petition was passed by the learned single judge with

the consent of the appellant, and therefore the

appellant cannot be permitted to turn around and

contend that JRCS Chitradurga had no jurisdiction to

adjudicate the issue pertaining to disqualification of

the appellant. It is point out that in the proceeding

before the JRCS Chitradurga, objection with regard to

jurisdiction was not raised. It is also pointed out that

section 2A(5) of the Act empowers the government to

confer the powers of joint registrar of co-operative

societies. Therefore the statement made on behalf of

the government before the learned single judge should

be construed as authorising JRCS Chitradurga to

decide the issue of disqualification.

9. It is argued that conduct of the appellant

disentitles him to any relief's in exercise of

extraordinary jurisdiction of this court, as he is fence

sitter. It is contended that the submission the

previous and subsequent charges levelled against the

appellant are the same, is factually incorrect. It is

urged that instant case is not a case of inherent lack

of jurisdiction and the decision in case of A.R Antulay

supra has no application to the facts of the case. It is

pointed out that Notification dated 06.12.2016 issued

under Section 2-A(5) of the Act pertains to territorial

jurisdiction and the JRCS Chitradurga falls within

Bengaluru region. In support of the aforesaid

submission reliance has been placed on decision of

Hon'ble Supreme Court in 'CHAIRMAN, STATE

BANK OF INDIA VS. M.J. JAMES', (2022) 2 SCC

301, 'SNEH LATA GOEL VS. PUSHPLATA AND

OTHERS', (2019) 3 SCC 594, AND DECISIONS OF

LEARNED SINGLE JUDGE THIS COURT IN 'BEML

EHBSC SITE DEPOSITORS & ANOTHER VS. THE

ADDITIONAL REGISTRAR OF CO-OP SOCIETIES (H

& M)', DATED 24.02.2016 IN W.P.NOS.26772-

73/2014 AND IN 'SHRI SURENDRA NAYAK VS. A.M.

MOHAMMED SHAFI', ILR 2016 KAR 4162.

10. Learned Senior Counsel for the Bank has

supported the submission made by the learned

Advocate General and has contended that the instant

case is not the case of inherent lack of jurisdiction. It

is also contended that no prejudice has been suffered

by the appellant.

11. Learned Senior Counsel for the impleading

applicant submitted that impleading applicant has

been elected in place of the appellant. Learned Senior

Counsel for the impleading applicant has supported

the stand taken by learned Advocate General.

12. We have considered the rival submissions

made on both sides. At this stage, it is apposite to

take note of relevant statutory provisions. Section 2-

A(5) and Section 29(1)-C(8) of the Act reads as under:

          2A.        Registrar,        Additional
     Registrars,     Joint    Registrars,   Deputy
     Registrars [,State      Representatives] and
     Assistant Registrars.
          (1) xxxx
          (2) xxxx
          (3) xxxx
          (4) xxxx
          (5) The State Government may, by

general or special order, confer on any person appointed as Additional Registrar of Co-operative Societies, Joint Registrar of Co-

operative Societies, Deputy Registrar of Co- operative Societies or Assistant Registrar of Co-operative Societies, [either as officiating or otherwise] all or any of the powers of the Registrar under this Act.

29C. 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,-

(8) If any member of a committee of a co-operative society during the term of his office,-

(a) becomes subject to any disqualifications specified in sub-sections (1), (2) and (5); or

(b) has acted or has been acting fraudulently or with gross negligence or in contravention of the provisions of this Act, the rules or the bye-laws of the co-operative society or without the sanction of the committee of the co-operative society where such sanction is necessary or contrary to the

resolution of the co-operative society or its committee or in any way prejudicial to the interest of the co-operative society; or

(c) has acted or has been acting persistently against the directions or orders issued under this Act, rules or bye-laws; or

(d) is not discharging his duties satisfactorily; the Registrar may either on a report made to him or otherwise, by order remove such member, and in cases falling under clauses (a), (b), (c) and (d) of this sub- section disqualify him from holding any office in the co-operative society for such period not exceeding five years, as may be specified in such order:

Provided that no order shall be made under this sub-section unless a reasonable opportunity of being heard, is given to the person against whom the order is to be made.

13. Before proceeding further, we may advert to

the well settled legal principles. Judicial estoppel is a

part of doctrine of equitable estoppel. The object of

judicial estoppel is to preserve the integrity of the

courts. Under judicial estoppel, a party to litigation

cannot be permitted to take contradictory stand and

to change its position. [See: SURENDRA NAYAK VS.

A.M. MOAHMMED SHAFI', ILR 2016 KAR 4162]. It is

trite law that where a party despite knowledge of the

defect in the jurisdiction of an Authority, participates

In the proceedings without any kind of objection by its

conduct it disentitles itself from raising such question

in subsequent proceeding. [See: 'SBI VS. RAMDAS M',

(2003) 12 SCC 474]. The doctrine of acquiescence is

an equitable doctrine which applies when a party

having right stands by and sees another dealing in a

manner inconsistent with that right, while the act is

in progress and after violation is completed, which

conduct reflects his assent or accord. He cannot

afterwards complain. [See: 'CHAIRMAN, STATE BANK

OF INDIA AND ANOTHER VS. M.J.JAMES', (2022) 2

SCC 301]. A writ court would be justified in declining

to exercise its extraordinary discretionary jurisdiction

at the instance of the party who has acquiesced in a

given state of affairs or is responsible for its creation.

A case of inherent lack of jurisdiction stands on a

different footing than the cases pertaining to other

jurisdictional errors. The competence of an authority

to hear a case goes to the very root of jurisdiction and

where it is lacking, it would be a case of inherent lack

of jurisdiction. The aforesaid principle has been given

a statutory recognition in Section 21 of the Code of

Civil Procedure. [SEE: 'HIRALAL PATNI VS.

KALINATH', AIR 1962 SC 199]. It is equally well

settled legal principle that when a case is tried by an

authority / court on merits and judgment has been

rendered it should not be reversed purely on technical

grounds unless it has resulted in failure of justice.

This aforesaid principle has been incorporated under

Section 21 and 99 of the Code of Civil Procedure. [See:

'SNEH LATA GOEL VS. PUSHPALATA AND OTHERS',

(2019) 3 SCC 594].

14. In the light of well settled legal principles,

we may now advert to the facts of the case in hand.

Admittedly, the appellant was disqualified for the first

time on 08.12.2016. It is also not in dispute that the

appellant challenged the validity of order of

disqualification in a writ petition viz.,

W.P.No.63355/2016, which was dismissed by an

order dated 17.11.2021 and the appellant was

relegated to avail, alternative remedy of filing an

appeal. It is pertinent to mention that the appellant in

the aforesaid proceeding did not raise the issue with

regard to jurisdiction of the joint registrar to pass an

order of disqualification. In compliance of the liberty

granted to the appellant by Learned Single Judge, the

appellant preferred an appeal, which was allowed by

an order dated 13.05.2022 by the appellate authority.

15. The appellant thereafter was disqualified

subsequently by an order dated 14.07.2020. The

appellant challenged the aforesaid order in a writ

petition viz., W.P.No.8891/2020, inter alia on the

ground that the impugned order is product of unfair

procedure followed by the Joint Registrar, Co-

operative Societies. In view of stand taken by the

appellant, learned Advocate General submitted that in

view of allegations made against the Joint Registrar,

Co-operative Societies, in all fairness he should have

refrained from deciding the matter and therefore, the

impugned order be set aside and matter be remitted

for fresh consideration at the hands of any of the four

joint registrar's mentioned in the memo filed before

the Learned Single Judge. Learned Senior Counsel for

the appellant agreed to the aforesaid submission and

stated that matter be remitted to any one of the Joint

Registrar which may be chosen by Learned Single

Judge of this court. In view of stand taken by Learned

Senior Counsel for the appellant as well as learned

Advocate General, the writ petition was disposed of by

Learned Single Judge by an order dated 14.08.2020.

The relevant extract of the order reads as under:

          5.       Learned             Advocate          General
     appearing      for    the         official     respondents

having stood tall at the Bar straightaway submitted that regardless of alleged illegalities that have arguably infected the impugned order, fair play which is an essential element of adjudication, requires that the 3rd respondent in all fitness of things could have refrained form deciding the matter; however, no aspersions can justifiably cast on him; therefore the impugned order be set at naught so that the matter is remanded for consideration afresh at the hands of any one of the four Joint

Registrars enlisted in the Memo, filed this day.

6. Learned Sr. Advocate Mr. Patil standing equally tall at the Bar declined the offer made by the learned AG to choose any of the four Joint Registrars for accomplishing fresh consideration of the remand stating that he has no reason to doubt any of them and that this Court in its discretion may choose one so that the matter after remand will have a fair treatment, with the participation of all the stake holders; however he points out that, for the said purpose, four weeks as suggested by the learned AG will not be sufficient, but six weeks might be.

7. In view of the fair and reasonable stand taken up by both the sides and the demonstrable error apparent on the face of the record namely, Respondent No.3 proceeding with the enquiry despite petitioner's objection thereto, there is no need for elaborate consideration of all the

contentions urged on behalf of the petitioner; fairness requires that justice should not only be done but should seem to have been done as rightly echoed by the learned AG.

In the above circumstances, this writ petition is favoured in part; a Writ of Certiorari issues quashing the impugned order; matter is remanded for consideration afresh with the participation of all the stake holders; the third respondent shall make over the file to the Joint Registrar of Cooperative Societies and Managing Director of DCC Bank, Chitradurga (Mr. Illiyas Ulla Sharief), who shall accomplish the enquiry within an outer limit of six weeks, in accordance with law; all contentions of the parties are kept open.

Petitioner shall officiate as the President of respondent-Bank subject to outcome of the remand and the rider which the learned Co-ordinate Judge in the circumstances of the case in his wisdom had stipulated in the interim order referred to

above; it is needless to mention that the other orders impugned in the writ petition at Annexures N & L shall not be construed to come in the way of this interim arrangement for the limited period.

16. Thus it is evident that Learned Senior

Counsel for the appellant stated before Learned Single

Judge that Learned Single Judge may itself choose

any of the four Joint Registrar's to decide the matter

afresh. Thereafter, the appellant challenged the

aforesaid order in a writ appeal viz.,

W.A.No.459/2020. In the writ appeal also, the

appellant did not raise the contention that the JRCS,

Chitradurga has no jurisdiction to decide the issue

pertaining to disqualification. The appellant furnished

an undertaking before the division bench of this court

that he shall co-operate with the enquiry officer and

shall not seek any unnecessary adjournments and

shall complete the enquiry on or before the time

stipulated in the order passed by Learned Single

Judge. A division bench of this court vide judgment

dated 22.09.2020 disposed of the writ appeal. The

operative portion of the judgment reads as under:

"9. Accordingly, we dispose of the petition by passing the following order:

(i) The impugned order dated 14th August 2020 is modified by deleting that portion of the impugned order by which restraints put on the appellant by interim order dated 30th July 2020, were directed to continue;

(ii) We direct the appellant to cooperate with the pending enquiry in terms of the solemn undertaking given by him;

(iii) It is made clear that in the event the appellant does not cooperate for the conclusion of the enquiry within the time stipulated by the learned Single W.P No.12096/2020 Judge, it will be open for the first respondent to apply to this Court for

recall of this order and for revival of the appeal;

(iv) The appeal is accordingly partly allowed on the above terms.

(v) We make it clear that this order shall not be construed to mean that any adjudication has been made on the allegations made against the appellant and all contentions in the enquiry are expressly left open to be decided by the enquiry officer."

17. Thus, it is evident that the order passed by

the Learned Single Judge was passed with the

consent of the appellant, which was upheld by

division bench of this court. Neither in the writ

petition nor in the appeal, the appellant raised the

issue with regard to jurisdiction of the JRCS,

Chitradurga to adjudicate the dispute with regard to

disqualification of the appellant. It is also noteworthy

that the appellant did not raise any objection with

regard to jurisdiction of the JRCS, Chitradurga even

in the proceeding before him. For the first time, the

appellant raise such a contention in the writ petition,

while challenging the order dated 14.10.2020 passed

by the Joint Register, Cooperative Societies.

18. The appellant is precluded by his conduct

to raise the issue of jurisdiction of JRCS, Chitradurga

as he agreed to remand of the matter to any of the

four joint registrars. The appellant has been sitting on

the fence and has waited for the outcome of the

proceeding initiated by JRCS, Chitradurga. His

conduct therefore, disentitles him to any relief in

exercise of extraordinary jurisdiction under Article

226 of the Constitution of India. The writ court was

justified in declining to exercise its extraordinary

discretionary jurisdiction in favour of the appellant

who had acquiesced in passing of the order dated

14.08.2022 by Learned Single Judge. The State

Government is the competent authority to confer the

powers of Joint Registrar Cooperative Societies any

additional registrar of the cooperative society. In any

case, the from the stand taken by the government

before the Learned Single Judge, it can safely be

inferred that it had conferred the power on JRCS,

Chitradurga to decide the dispute. The instant case is

therefore, not a case of inherent lack of jurisdiction.

19. The contention made by Learned Senior

Counsel for the appellant that the appellant did not

give consent for passing of order dated 14.08.2020 by

the Learned Single Judge does not deserve

acceptance. The State Government is the competent

authority to confer powers of joint registrar on any of

assistant registrar and therefore, in the facts of the

case, the memo filed on behalf of the State

Government has to be construed as conferring power

on the JRCS, Chitradurga to decide the dispute

pertaining to disqualification of the appellant.

Therefore, the contention of the appellant that JRCS,

Chitradurga was not competent to decide the dispute

is negatived.

20. Though many submissions have been

made, however, it is not necessary for us to advert to

the same in this intra court appeal, as the impugned

order passed by JRCS, Chitradurga is an order

appealable under Section 106 of the Act. We therefore,

permit the appellants to raise all such contentions in

an appeal, which may be preferred by them under

Section 106 of the Act. In case, such an appeal is

filed within a period of three weeks from today, the

appellate authority shall decide the appeal

expeditiously after hearing the parties within a period

of six weeks from the date of filing of the appeal. It is

clarified that we have not expressed any opinion on

merits of the matter.

For the aforementioned reasons, we do not find

any ground to differ with the conclusion arrived at by

the Learned Single Judge. With the aforesaid

directions, appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS