Karnataka High Court

The Alumni Association Of The ... vs The State Of Karnataka on 27 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                      NC: 2024:KHC:8088
                                                  WP No. 932 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                       BEFORE
                     THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                      WRIT PETITION NO. 932 OF 2023 (GM-KSR)
              BETWEEN:

              THE ALUMNI ASSOCIATION OF THE UNIVERSITY
              VISVESVARAYA COLLEGE OF ENGINEERING
              (A.A.U.V.C.E)
              SILVER JUBILEE BUILDING
              POST OFFICE ROAD, K.R.CIRCLE
              BENGALURU - 560 001
              REPRESENTED BY ITS SECRETARY
              REGISTERED UNDER THE KARNATAKA
              SOCIETIES REGISTRATION ACT, 1960.
                                                          ...PETITIONER
              (BY SRI DEVI PRASAD SHETTY, ADVOCATE)

Digitally signed AND:
by NAGAVENI
Location: HIGH 1. THE STATE OF KARNATAKA
COURT OF
                    DEPARTMENT OF CO-OPERATION
KARNATAKA
                    M.S.BUILDING
                    BENGALURU - 560 001
                    REPRESENTED BY ITS
                    PRINCIPAL SECRETARY.

              2.    THE DISTRICT REGISTRAR /
                    DEPUTY REGISTRAR OF
                    CO-OPERATIVE SOCIETIES
                    'SAHAKARA SOUDHA'
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                                         NC: 2024:KHC:8088
                                       WP No. 932 of 2023




      4TH CIRCLE
      BENGALURU URBAN DISTRICT
      3RD MAIN ROAD, 8TH CROSS,
      MARGOSA ROAD
      MALLESHWARAM
      BENGAURU - 560 003.

3.    CO-OPERATIVE DEVELOPMENT OFFICER /
      ENQUIRY OFFICER
      OFFICE OF DEPUTY REGISTRAR OF
      CO-OPERATIVE SOCIETIES
      4TH CIRCLE
      BENGALURU URBAN DISTRICT
      3RD MAIN ROAD, 8TH CROSS,
      MARGOSA ROAD
      MALLESHWARAM
      BENGAURU - 560 003.

4.    B.N.ANANDA
      S/O K.C.NARASIMAIAH
      AGED ABOUT 76 YEARS
      ASSOCIATION MEMBER
      NO.30, VRISHABA
      ASTAGRAMA BADAVANE
      MAGADI ROAD CROSS
      BENGALURU - 560 079.
                                           ...RESPONDENTS
(BY    SRI RAHUL CARIAPPA K.S., AGA FOR R1 TO R3;
       SRI A.V.AMARNATHAN, ADVOCATE FOR R4)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENQUIRY REPORT DTD. 02.03.2022 SUBMITTED
BY THE R-3 PRODUCED AT ANNX-G1; QUASH THE
COMMUNICATION     DTD.    14.12.2022  IN    NO.DRB-
4/SOR/ALUMNI/79/2021-22   SUBMITTED  BY   THE   R-2
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                                                    NC: 2024:KHC:8088
                                                   WP No. 932 of 2023




PRODUCED AT ANNX-G; QUASH THE NOTICE ISSUED BY THE
R-1 DTD. 23.12.2022 IN NO. CO.137 CRS 2022 PRODUCED AT
ANNX-H.


    THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                                   ORDER

The petitioner is before this Court calling in question a

report of an enquiry dated 02.03.2022, of respondent No.3 and

communication dated 14.12.2022, by respondent No.2

recommending appointment of an Administrator to run the

affairs of the petitioner - Association.

2. Heard Sri Devi Prasad Shetty, learned counsel for

petitioner, Sri Rahul Cariappa K.S., learned Additional

Government Advocate for respondent Nos.1 to 3 and

Sri A.V.Amarnathan, learned counsel for respondent No.4.

3. Facts in brief germane, are as follows:

The petitioner is a Alumni Association of the University

Visvesvaraya College of Engineering (for short 'the

Association'). The Association on completion of the term at the

relevant point in time issued an election notification directing

that the election would be held on 28.12.2021, by appointing a

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Returning Officer. The election notification dated 27.11.2021,

reads as follows:

"ELECTION NOTIFICATION

The Election to the post of President, Vice president and twelve executive members will be held on Tuesday, the 28th December 2021 at the Association premises. The term of office of the elected members will be for a period of THREE years 2022, 2023 and 2024.0

The calendar of events are as follows:

1. Nomination open from 10 AM on: 06-12-2021

2. Nomination closes at 5 PM on : 09-12-2021

3. Scrutiny and withdrawal of nomination papers at 10 AM : 10-12-2021.

4. Final List of candidates : 11-12-2021

4. Date of Election(10AM to 2 PM for contested posts : 28-12-2021

5. Place of Election: Association Auditorium

6. Mode of Election: By secret ballot for contested posts

7. Results of Election: In the ordinary Annual General Meeting 28-12-2021

Date:27-11-2021 Sd/- 27/11/21 Place:Bengaluru Returning officer

Copy to: Notice Board Office copy"

(sic)

Pursuant to the said notification of election, the results of

the election are declared on 28.12.2021 and the members of

the Executive Committee, President and Vice President are also

indicated in the said notification and the election results as well.

The results of the election reads as follows:

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"ELECTION RESULTS

The List of candidates elected unopposed for the THREE years period 2022, 2023 and 2024 are:

     Sl.No.         POST               Name of the canbdidate
     1              President          L VasudevaMurthy
     2              Vice-president     N.K.L.Prasad

     POST:EXECUTIVE COMMITTEE MEMBER

         Sl.NO.     Name of the candidate
         1          Dr. Poolu Nagaraj
         2          C. Kalaivanan
         3          Anil Kumar
         4          A.T. Vasu
         5          Dr. Jagadish T
         6          C Nataraja
         7          K Suresh Prabhu
         8          Vacant

Note: (i) One post of Executive Committee member is vacant.

(ii) Four post reserved for staff of UVCE to be nominated by the general body.

The above list of elected candidates is commended to the General body to be held on Tuesday, 28th December 2021 at 3 PM at the Association auditorium, K R Circle, Bengaluru - 560

001."

After the elections of the Office Bearers of the

Association, respondent No.4 registers a complaint before the

District Registrar of the Societies alleging that the elections

have not taken place, in accordance with law. The District

Registrar initiates, conducts an enquiry under Section 25 of the

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Karnataka Societies Registration Act, 1960 (for short 'the Act')

and holds prima facie, that the elections were not held in

accordance with law and recommends for issuance of show

cause notice to the petitioner as to why an Administrator to the

Association should not be appointed on the ground that the

elections are not held in an appropriate manner. On issuance

of the show cause notice on 23.12.2022, the petitioner -

Association prefers the subject petition on 11.01.2023, on the

ground that the elections or the veracity of the elections cannot

be gone into by the Registrar under Section 25 of the Act. This

Court granted an interim order on 17.01.2023. The learned

counsel for respondent No.4 has filed an application seeking

vacation of the interim order and the matter is heard finally

with the consent of the parties.

4. Learned counsel for petitioner would contend that what

is alleged in the complaint before the District Registrar for

conduct of an enquiry under Section 25 of the Act was

regarding conduct of elections. He would submit that the

enquiry conducted by the District Registrar and consequence of

such enquiry, are all acts without jurisdiction as the only relief

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for the complainant was to knock at the doors of the competent

civil Court calling in question the election so held.

5. The learned counsel for the petitioner further would

submit that the complainant - respondent No.4 is not even a

member of the Association; he was a member, who has been

removed from the post but the removal is set aside by the

Registrar, which is challenged in the companion petition.

6. Learned counsel for respondent No.4 would submit

that for the last 25 years, the elections are held in the same

manner which is not notified appropriately in any newspaper; a

small news item is published in the newspaper for the sake of

publishing and no members are notified; there are 8,600

members in the Association and the petitioner is being elected

clandestinely every time. The District Registrar has conducted

the enquiry and has issued a show cause notice as to why the

Administrator should not be recommended to be appointed.

The order does not require any interference, is his emphatic

submission.

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7. Learned Additional Government Advocate would also

toe the lines of the learned counsel for respondent No.4 -

complainant.

8. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

have perused the material on record.

9. The afore-narrated facts are not in dispute. In effect,

what respondent No.4 calls in question is the elections that

were held on 28.12.2021. According to the complaint or the

submission of the learned counsel for respondent No.4, the

election is held in clandestinely and not in a democratic way.

The learned counsel appearing for respondent No.4 would

emphasize on the fact that no voters list is drawn nor any

member is notified about the elections. The members who

were elected earlier, are getting themselves elected every time.

10. If the submissions or the contra submissions

observed hereinabove are noticed, what would unmistakably

emerge is that respondent No.4 is wanting to challenge the

elections that is held on 28.12.2021. The elections are held

and all other necessities after the elections are also over.

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Therefore, the enquiry conducted by the Registrar invoking

Section 25 of the Act in a procedure under Section 27 of the

Act, on the face of it, are all without jurisdiction as it would run

foul of several judgments rendered by this Court as the power

of the Registrar to enter into elections, conduct of the elections

and its aftermath, are all acts without jurisdiction.

11. This Court after following the judgment of the co-

ordinate bench rendered in the case of AMIYA VILAS SWAMI

AND OTHERS v. SHANKHA BRITA DAS AND OTHERS

reported in (2008) 3 KLJ 16 as also that of the Apex Court in

the case of S.DAVID STEPHEN AND OTHERS v. C.M.S.E.S.D.

MEMO.HR.SEC.SCHO.COMMT AND OTHERS in Civil Appeal

No.5989-5991 of 2009 decided on 20-03-2012, in

W.P.No.14787/2022, disposed on 16.11.2022, has clearly

held that the process of election or the result of election or

malpractices in the election or any other matter that would

touch upon the elections are purely the matter to be challenged

before the competent civil Court in a full blown proceedings and

the Registrar could not get the jurisdiction to enter into the

conduct of elections invoking power under Section 25 of the

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Act. The relevant observations in the judgment read as

follows:

"13. On a coalesce of the judgments rendered by the Full Bench of High Court of Madras, the Apex Court later affirming the judgment of the Full Bench and the judgment of the co-ordinate Bench, what would unmistakably emerge is that the District Registrar cannot assume power of a civil Court to consider the importance of evidence in election matters in the garb of conducting enquiry under Section 25 of the Act. Conduct of elections or declaration of elected candidates or a direction seeking holding of fresh election will have to be before the competent civil Court. It is further germane to notice the judgment rendered by the co-ordinate Bench in the case of AMIYA VILAS SWAMI AND OTHERS v. SHANKHA BRITA DAS AND OTHERS1 wherein it is held as follows:-

"32. Section 25 of the Act reads as under:

25. Enquiry by the Registrar, etc.--(1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the Constitution, working and financial condition of a registered society.

(2) The Registrar or the person authorised by him under sub-section (1) shall have the following powers, namely.--

(a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents, securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof;

(2008) 3 KLJ 16

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(b) he may summon any person who, he has reason to believe, has knowledge of any of the affairs of the society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath;

(c)(i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself;

(ii) any meeting called under sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules or regulations;

(iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.

33. Section 25 as extracted above clearly shows that, the Registrar can hold an enquiry in the matter of Constitution, working and the finance. This power the Registrar can exercise either suo motu or on application, whether such enquiry gives finality to the dispute, whether it provides for adequate remedy to the parties to agitate their grievances.

34. Reading of provisions of Section 25 shows that, the Registrar can hold an enquiry and under Section 25, sub- section (2), clause (c), sub-clause (iii), he can communicate the result of the enquiry to the society concerned. Section is silent as to what happens to the report, or whether the Registrar can take further decision on the basis of enquiry. If a society is to be communicated with the result of the enquiry, whether such a society is bound by the report or whether the society in pursuance of the said report could take action, all that is provided is only enquiry and submitting of report. Under Section 27-A of the Act, the Government can appoint an Administrator, if the society fails to hold an election even after

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expiry of the term of the governing body and if there is long pendency of litigation or is not able to hold the annual general meeting, in such circumstances, the power is conferred on the State Government to appoint Administrator. This is again the discretion of the State Government. It is not mandatory for the State Government to appoint Administrator based on report or based on information. The appointment of an Administrator will not resolve the inter se dispute between two groups claiming to constitute valid governing body or valid general body. In this case, both the groups are claiming that they are in the management or they are in the governing body. Provisions of Section 25 or 27-A do not provide for power to adjudicate, as to whether 'A' group is in governing body or 'B' group is in governing body.

35. Section 9 of the CPC confers power on the Civil Court to try all the suits of civil nature, except which are expressly or impliedly barred. It is nobody's case that, the jurisdiction of the Civil Court is expressly barred under the provisions of the Act. It is only by implication, the jurisdiction of the Civil Court is sought to be ousted. Implication is an indirect method of ousting the jurisdiction of the Civil Court. In such a case, the provisions which oust the jurisdiction of the Civil Court, must provide for a mechanism to adjudicate such dispute. The cumulative effect of the statutory provision should provide for adequate remedy on par with the jurisdiction of the Civil Court. In such circumstances, it can be inferred that the jurisdiction of the Civil Court is impliedly excluded.

36. In this regard, a decision is relied by the learned Senior Counsel for the appellant in Dhulabhai's case, the Apex Court has considered as to, what constitutes the ouster of jurisdiction of the Civil Court by implication, and has observed that, the Civil Courts' jurisdiction must be held to be excluded, if there is an adequate remedy to do, what the Civil Court would normally do in a suit. This observation clearly indicates that the special statute, which provides for adjudication of the dispute, must give finality and must provide a jurisdiction that is vested in the Civil Court vis-a-vis, the enquiry that is contemplated under the special statute to be on par with the jurisdiction of the Civil Court. Such provisions would impliedly exclude the jurisdiction of the Civil Court. The Apex Court while interpreting Section 9 of the CPC has further observed that, sufficiency of the remedies is one of the criteria. Further observed that, even the sufficiency of the remedies provided for by statute may be relevant but a decisive, what is required

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to be seen is, that the remedies normally associated with the actions in Civil Courts are prescribed by the said statute to infer the implied bar. The exclusion of the jurisdiction of the Civil Court should not be normally inferred unless the statute by implication provide for adequate remedies and complete mechanism for adjudication of the dispute, this can be gathered from the intention of the legislation and scheme of the Act. If the entire scheme provides for complete adjudication of the matter and gives finality and gives adequate or sufficient remedies to the aggrieved party, it can be held that, by implication the jurisdiction of the Civil Court is barred. It is useful to extract the conditions specified in para 32 of the Dhulabhai's case. The Apex Court has laid down as many as seven conditions:

(1) Where the statute gives a finality to the orders of the special Tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the later case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals

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constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

37. It is clear from the above observation that, an examination of the scheme of the particular Act is necessary to find out the adequacy or the sufficiency of the remedies provided.

38. The jurisdiction of the Civil Court is excluded without there is an express bar under law, where there is adequate remedy available to the party to adjudicate their grievance under the special statute. If the procedure of enquiry provided under the Civil Procedure is fulfilled otherwise under the provisions of special statute, it is sufficient to infer the implied bar. The affording an opportunity and holding an enquiry must be found under the special statute. In such circumstances, whether expressly barred or not by implication, the jurisdiction of the Civil Court is ousted.

39. In identical circumstances, the Apex Court in a decision in the case of Nagri Pracharini Sabha, while

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interpreting Section 25 of the Societies Registration Act as amended in Uttar Pradesh has held that, though Section 25 of the said Act provides for a remedy to challenge the election of the members of the governing body, but it is subject to compliance with certain statutory requirement and in case if a member who cannot comply with the requirement, he can still file a suit for adjudication of the election dispute, even though the remedy is provided for adjudication of election dispute, if the aggrieved party cannot invoke the said provision for want of compliance of the statutory requirement, still he is not barred to challenge the same in common law Court, it is clear that there must be remedy to the aggrieved party.

40. In this case, reading of Section 25 does not provide for raising any such dispute nor provide for adjudication, hence it cannot be inferred or understood to mean that the dispute touching the Constitution or a dispute between the members and the members and members and the society could be adjudicated. What is not provided in law cannot be inferred."

(Emphasis supplied)

If the facts obtaining in the case at hand are considered on the touchstone of the principles laid down in the afore- quoted judgments, the unmistakable inference would be that the petition would not be maintainable before this Court, as the petitioners have to knock the doors of the competent civil Court seeking to annul the elections.

14. The indirect effort made to submit that petitioners are not seeking inquiry into the conduct of elections is neither here nor there, as elections are over, the Executive Committee is in place and the averments in the petition point at corrupt practice like large scale rigging and several other illegalities and irregularities in the conduct of elections. It is, therefore, the petitioners have to approach the competent civil Court for appropriate relief. This Court would not entertain the petition after the elections are over, even for a direction to the District Registrar to enquire into the conduct of elections. No fault can be found with the order of the District Registrar declining to entertain the complaint, as it was in the realm of challenging the elections."

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In the light of the afore-quoted judgment and

unequivocal facts narrated hereinabove, the petition deserves

to succeed as the act of the Registrar is wholly without

jurisdiction.

12. Learned counsel for respondent No.4 submits that the

election is ensuing, as the term is now getting over. Therefore,

if respondent No.4 has any grievance, it is open for him to vent

out the same before the State by submitting a representation

and on such representation being made, the State shall

consider and pass appropriate orders, in accordance with law.