Karnataka High Court

Sri P Nagaraj S/O P Pampanna vs The State Of Karnataka on 14 February, 2024

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

                                               -1-
                                                      NC: 2024:KHC-D:3487
                                                         WP No. 107304 of 2023




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                          DATED THIS THE 14TH DAY OF FEBRUARY, 2024
                                             BEFORE
                       THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                          WRIT PETITION NO. 107304 OF 2023 (CS-EL/M)
                      BETWEEN:

                      SRI P NAGARAJ S/O P PAMPANNA
                      AGE: 40 YEARS
                      OCC: ADHYAKSHA PRATHAMIKA KRUSHI PATITNA
                      SAHAKARA SANGHA NIYAMITA BOMMAGHATTA
                      TQ: SANDUR
                      DIST: BALLARI 583128
                                                              ...PETITIONER
                      (BY SRI. V P VADAVI, ADVOCATE)

                      AND:

                      1. THE STATE OF KARNATAKA,
                      BY ITS SECRETARY
                      DEPARTMENT OF CO-OPERATIVE
                      M.S. BUILDING, BENGALURU-560001.

SUJATA                2. THE AUTHORISED OFFICER
SUBHASH               TO HOLD THE NO-CONFIDENCE MOTION AGAINST THE
PAMMAR                PRESIDENT OF PRATHAMIKA KRUSHI PATTINA
                      SAHAKARA SANGHA, NIYAMITA AND
Digitally signed by   THE CO-OPERATIVE DEVELOPMENT OFFICER,
SUJATA
SUBHASH               BALLARI DISTRICT-583128
PAMMAR
Date: 2024.02.28
21:09:41 -0800        3. THE ASSISTANT REGISTRAR
                      CO-OPERATIVE SOCIETIES,
                      BALLARI SUB-DIVISION,
                      DIST: BALLARI-583101

                      4. THE SECRETARY
                      PRARTHAMIKA KRUSHI PATTINA SAHAKARA
                      SANGHA NIYAMITA, BOMMAGHATTA
                      TQ: SANDUR, DIST: BALLARI-583128
                         -2-
                              NC: 2024:KHC-D:3487
                               WP No. 107304 of 2023




5. B R SRINIDHI
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

6. K KUMARASWAMY
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

7. M R NAGENDRA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

8. RAMCHANDRA NAIK
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

9. HOSURAMMA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

10. G HONNURAPPA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128
                           -3-
                                NC: 2024:KHC-D:3487
                                  WP No. 107304 of 2023




11. SANNA BASAPPA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA, TQ: SANDUR, DIST: BALLARI-583128

12. DURUGAMMA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

13 BOMAPPA, AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128

14. IRAMMA
AGE: MAJOR, OCC: MEMBER,
PRARTHAMIKA KRUSHI PATTINA SAHAKARA
SANGHA NIYAMITA, BOMMAGHATTA
R/O: BOMMAGHATTA
TQ: SANDUR, DIST: BALLARI-583128
                                           ...RESPONDENT
(BY SRI.S.S.YADRAMI, SR. COUNSEL FOR SRI. GIRISH V. BHAT
FOR R5 TO R14;
SRI. V.S.KALASURMATH, HCGP FOR R1, R2 AND R4)
     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUION OF INDIA PRAYING TO ISSUE A WRIT OR
ORDER, OR DIRECTION IN THE NATURE OF CERTIORARI
QUASH THE NOTICE DATED 22/11/2023 PASSED BY THE
RESPONDENT NO.2 VIDE ANNEXURE-C BY THE VIRTUE OF THE
NOTICE              BEARING             NO.SANI22/V-
6/33/CHUNAVANE/AVISHVASA/ 2023-24 DATED 17/11/2023
DIRECTED/ISSUED BY THE 3RD RESPONDENT.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
                                -4-
                                      NC: 2024:KHC-D:3487
                                          WP No. 107304 of 2023




                             ORDER

The notice dated 22.11.2023 issued by the respondent No.2 at Annexure-C, by which, a meeting was convened on 8.12.2023 to consider the no confidence motion moved against the petitioner, who is the President of the cooperative society in question, is impugned in this petition.

2. The learned counsel for the petitioner would submit that, the impugned notice issued by the respondent No.3 is contrary to Sub-Clause (4) of Rule 14AKK of the Karnataka Cooperative Societies Rule, 1960 (for short `Rules'), since 15 days clear notice was not provided to the petitioner. Therefore, the impugned notice issued by the respondent No.3 is in contravention of the Rules. In support, he places the following decisions:

1) Hanamavva -vs- Assistant Commissioner, Bagalkot and others - 2022 SCC OnLine Kar. 1680.

2)    WP No.101890/2022 (DD 31.5.2022) (FB)
3)    WP No.102307/2023 (DD 21.4.2023)

3. Sri S S Yadrami, learned Senior Counsel representing the learned counsel for the respondents No.5 to 14 would submit that, 15 days clear notice was provided to the petitioner as contemplated under Sub-Clause (4) of Rule 14-

AKK of the Rules, and the impugned notice having been issued in conformity with the provisions of law, the present petition is not maintainable. In support, he places the following decisions:

NC: 2024:KHC-D:3487

i) Ramaswamy Angadi -vs- The Assistant Commissioner, Madhugiri sub-Division, Madhugiri Taluk, Tumkur District and others - 2010 SCC OnLine Kar. 24.

ii) Jai Charan Lal Anal -vs- State of UP and others - (2967) 3 SCR 981.

iii) WP (C) No.20935/2022 (DD 13.6.2023) (High Court of Kerala at Ernakulam)

He further submits that even accepting 15 days clear notice was not provided, no prejudice is caused to the petitioner. He further submits that except the hypertechnic question, the petitioner has not shown what is the prejudice caused to him by receipt of the notice belatedly.

4. The learned High Court Government Pleader for the State would reiterate the submissions made by the learned Senior counsel for the respondents No.5 to 14.

5. Considered the submissions made by the learned counsel for parties.

6. The Board of Directors of the co-operative society in question consists of 12 directors. Section 29H of the Karnataka Cooperative Societies Act, 1959 deals with motion of no confidence against the office bearer, and it states that a motion of no confidence against an officer bearer may be moved only after two years of his assumption of office. It further states that no motion of no confidence shall be moved unless there is a request from not less than one third of the elected members of the board of a cooperative society concerned.

NC: 2024:KHC-D:3487

7. Rule 14-AKK of the Rules deals with the procedure for moving the no confidence motion against the office bearer of the cooperative society concerned, and Sub-Clause (1) to Rule 14-AKK states that a written notice can be moved by not less than one third of elected members of the board along with a copy of the proposed motion shall be delivered in person to the Chief Executive of the society.

8. Sub-Clause (4) to Rule 14-AKK of the Rules states that the authorized officer shall give a notice of not less than 15 clear days of such meeting to all elected members of the board.

9. In the case on hand, the petitioner was issued with notice dated 22.11.2023 convening the meeting for considering the no confidence motion against him on 8.12.2023. The notice was dispatched on 23.11.2023, and the same was delivered to the petitioner on 28.11.2023.

10. Whether ten days clear notice found in first proviso to Section 49 of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 (for short `Act, 1993') read with Rule 3 of the Karnataka Panchayat Raj (No-Confidence Motion Against Adhyaksha and Upadhyaksha) Rules, 1994 was examined by the Full Bench is mandatory in the case of Hanamavva -vs- Assistant Commissioner, Bagalkot and others (2022 SCC OnLine Kar 1680). The Full Bench of this Court held that ten days clear notice found in first proviso to Section 49 of the Act, 1993 is mandatory stating that if a statute prescribes a

NC: 2024:KHC-D:3487

particular thing should be done, it should be done in the manner prescribed or not at all .

11. Sub-Clause (4) to Rule 14-AKK of the Rules states that fifteen days clear notice shall be given to all the elected members of the Board. Therefore, the Board of Directors should be provided 15 days clear dates of the meeting to be convened for moving the no confidence motion against the petitioner. The Hon'ble Supreme Court in the case of Jai Charan Lal Anal (supra) has held that the word `send' shows that the critical date is the date of the dispatch of the notice. The decision of Hon'ble Supreme Court in the said case follows by the coordinate Bench of this Court in WP No.101890/2022 (DD 31.5.2022), wherein paras-14 and 15 are as follows:

"14. One factual difference which was pointed out by the learned Counsel for the petitioner, which may require further consideration, is that having regard to the mandatory nature of the provision of the Rules, there may be a deficiency of one day and therefore this Court is required to consider as to whether there is 15 clear days notice as provided in the Rule. No doubt, in the decision of the Hon'ble Supreme Court in the case of Jai Charan Lal Anal (supra), the emphasis in the provision which fell for consideration therein was the use of the word "send"

by registered post and whereas in the present context, in the place of the usage of the word 'send', what is found in the Rule is the usage of the word 'give'. To that extent, the learned Counsel for the petitioner is right in his submission that since the terminology used in sub-rule (2) is that the Assistant Commissioner shall "give" 15 clear days notice to the members of the Gram Panchayat, the notice sent to the petitioner through RPAD, having been sent on

NC: 2024:KHC-D:3487

18.05.2022 and the petitioner receiving the same on 20.05.2022, it can be clearly held that it does not fulfill the requirement of the Rule of 15 clear days notice. However, since it is not disputed having regard to the original records being furnished to this Court that the notice dated 16.05.2022 was personally served to the petitioner on 17.05.2022, this Court is required to consider the applicability of the principles enshrined in the decision of the Hon'ble Supreme Court in the case of Jai Charan Lal Anal (supra).

15. The definition of the word "give" as found in P.Ramanatha Aiyar's The Law Lexicon Fifth Edition is "make another the recipient of something; bestow gratuitously". It is also provided that the word "given" or "giving a notice" means not only giving a notice, but it indicates when it is received. In the present context, it is clear that the petitioner was given the notice and he received the same personally on 17.05.2022. But the requirement of the Rule is 15 clear days notice. Again, in the Law Lexicon mentioned above, the words 'clear days' is defined as 'if a certain number of clear days be given for the doing of any act, the time is to be reckoned exclusively, as well of the first day as the last'. "Clear days" as used in a statute requiring the Court to allow three clear days in a criminal case to intervene between the verdict and the rendition of the judgment, mean "days exclusive of the day the verdict was rendered and the day upon which judgment should be pronounced......." "Where the term "clear days" is used, its effect is to exclude also the last day. It is therefore clear, as provided in sub-rule (2) of Rule 3, while computing the period having regard to the usage of the word "clear days", the two days viz., the date on which notice is given to the petitioner and the date on which the meeting is scheduled, are required to be excluded for the purpose of calculation of 15 clear days notice. This, is commensurate with the declaration of law made at the hands of the Full Bench in the case of

NC: 2024:KHC-D:3487

C.Puttaswamy, wherein it has been held that the provisions of the Rules are mandatory in nature. On facts, therefore, it has to be held that there is non- compliance of 15 clear days notice."

12. The coordinate Bench of this Court in WP No.101890/2022 has distinguished the term `send' and shall `give', and it is held that the date of dispatch of notice should be excluded. The date on which the notice was given to the petitioner, and the date of which the meeting is scheduled are required to be excluded for the purpose of calculation of 15 days' clear notice. In the instant case, the notice is dated 22.11.2023, and the notice was dispatched on 23.11.2023 convening the meeting of no motion on 8.12.2023. Therefore, the date on which the notice was dispatched, and the date of meeting has to be excluded for reckoning fifteen days clear notice. If the same is taken into consideration, the fourteen days is provided, and not 15 days clear notice as mandated under Sub-Clause (4) to Rules 14-AKK of the Rules. Therefore, the impugned notice issued does not satisfy the requirement of Sub-Clause (4) of Rule 14-AKK of Rules, 1960, which is mandatory, and the notice stands vitiated for non-compliance of mandatory Rules.

13. The Full Bench of this Court having held that giving ten days' clear notice is mandatory, the submission of the learned Senior Counsel for the respondents No.5 to 14 that no prejudice is caused to the petitioner is not acceptable. Accordingly, I pass the following:

- 10 -

                                         NC: 2024:KHC-D:3487





                              ORDER

      i)     The petition is allowed.

      ii)    The impugned notice dated 22.11.2023 issued by