Karnataka High Court
Sri H.T. Munikumar vs The State Of Karnataka on 5 January, 2024
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 5 DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.22398 OF 2023 (CS-RES)
C/W
WRIT PETITION NO.23943 OF 2023 (CS-RES)
C/W
WRIT PETITION NO. 23318 OF 2023 (CS-EL/M)
IN WP No.22398/2023
BETWEEN
1. SRI H.T. MUNIKUMAR
S/O THIMMAIAH
AGED ABOUT 40 YEARS,
DIRECTOR
SAKKAREGOLLAHALLI VYAVASAYA SEVA
SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
2. SRI. VISKAS H
S/O HANUMANTHARAYAPPA,
AGED ABOUT 31 YEARS,
DIRECTOR
SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
3. SRI. RAMAKRISHNAIAHA T
S/O THIMMAIAH
AGED ABOUT 70 YEARS,
DIRECTOR
SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
2
4. SRI. GANGAIAH
S/O GOVINDAIAH
AGED ABOUT 73 YEARS,
DIRECTOR
SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
5. SRI. VENKATESH S V
S/O VENKATAPPA
AGED ABOUT 34 YEARS,
DIRECTOR
SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
... PETITIONERS
(BY SRI VARUN JAYKUMAR PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO OPERATION,
M.S BUILDING,
DR. B R AMBEDKAR VEEDHI,
BENGALURU 560001
REPRESENTED BY ITS SECRETARY
2. THE STATE CO OPERATIVE
ELECTION AUTHORITY
3rd FLOOR, SHANTHI NAGAR,
T T M C 'A' BLOCK,
SHANTHI NAGAR
BANGALORE 560027
REPRESENTED BY ITS SECRETARY
3. SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
SAKKAREGOLLAHALLI
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
REPRESENTED BY ITS ADMINISTRATOR
REGISTERED UNDER KARNATAKA
3
COOPERATIVE SOCIETIES ACT, 1959
4. THE CO OPERATIVE DEVELOPMENT
OFFICER/ RETURNING OFFICER
SAKKAREGOLLAHALLI VYAVASAYA
SEVA SAHAKARA SANGHA NIYAMITHA
DODDABALLAPUR TALUK
BENGALURU RURAL DISTRICT 561 204
5. THE ASSISTANT REGISTRAR OF
CO OPERATIVE SOCIETIES
DODDABALLAPURA DIVISION,
DODDABALLAPURA 561 203
...RESPONDENTS
(BY SRI SIDDHARTH BABURAO, AGA FOR R1, R4 & R5
SRI T L KIRAN KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER BEARING NO.SA.NI47/VISHESADHIKARI NEMAKATI/06/2023-24
DTD 19.09.2023 PASSED BY R3 VIDE ANNEXURE-G AND ETC.
IN WP NO.23943/2023
BETWEEN
1 . SRI SAYED HASEEB
S/O SAYED MOHAMMED
AGED ABOUT 41 YEARS
PRESIDENT HALAGANAHALLI PRIMARY
AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
HALAGANAHALLI
PERIYAPATTANA TALUK
MYSURU 571187
2 . SURESH
S/O KRISHNEGOWDA
AGED ABOUT 45 YEARS
DIRECTOR
HALAGANAHALLI PRIMARY
AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
4
R/AT RAJANA BELAGULI VILLAGE
HARANAHALLI
PERIYAPATTANA TALUK
MYSURU 571187
3 . CHELUVANAYAKA
S/O CHELUVANAYAKA
65 YEARS
DIRECTOR
HALAGANAHALLI PRIMARY
AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
R/AT RAJANA BELAGULI VILLAGE
HARANAHALLI
PERIYAPATTANA TALUK
MYSURU 571187
4 . ATHER METHEEN
AGED ABOUT 45 YEARS
DIRECTOR
HALAGANAHALLI PRIMARY
AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
HALAGANAHALLI
PERIYAPATTANA TALUK
MYSURU 571187
5 . SHIVARAMA
S/O SANNAIAH
54 YEARS
DIRECTOR
HALAGANAHALLI PRIMARY
AGRUCULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
KARADIPURA VILLAGE
HARANAHALLI HOBLI
PERIYAPATTANA TALUK
MYSURU 571 105
...PETITIONERS
(BY SRI SANDESH T B, ADVOCATE)
5
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO OPERATION
M.S. BUILIDNG
DR.B.R. AMBEDKAR VEEDHI,
BENGALURU 01
REPRESENTED BY ITS SECRETARY
2. THE CO OPERATIVE ELECTION AUTHORITY
NGO COLONY, WILSON GARDEN
BENGALURU
KARNATAKA 560 027
REPRESENTED BY ITS SECRETARY
3. ASSISTANT REGISTRAR OF
CO OPERATIVE SOCIETIES
HUNASURU SUB DIVISION
HUNSURU TALUK
MYSURU 571 105
4. PRIMARY AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
HALAGANAHALLI
HALAGANAHALLI VILLAGE
PERIYAPATTANA TALUK
MYSURU DISTRICT 571 105
REPRESENTED BY ITS CEO
5. SPECIAL OFFICER
PRIMARY AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
HALAGANAHALLI
HALAGANAHALLI VILLAGE
PERIYAPATTANA TALUK
MYSURU DISTRICT 571 105
....RESPONDENTS
(BY SRI SIDDHARTH BABURAO, AGA FOR R1, R3 AND R5
SRI T L KIRAN KUMAR, ADVOCATE FOR R2
SRI PATIL KALYAN RAO, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER
6
PASSED BY THE R-3 ON 22.09.2023 IN NO. SANI-43/
ADMINISTRATIVE/XSN/CR-09/2023-24 AT ANNX-C IN SO FAR AS THE
PETITIONER ARE CONCERNED AND ETC.
IN WP NO.23318/2023
BETWEEN
1. SRI.LOKESH GOWDA C .H
S/O LATE HEGDE GOWDA,
AGED ABOUT 65 YEARS
DIRECTOR OF PRIMARY
AGRICULTURE CREDIT
CO-OPERATIVE SOCIETY LTD
KUDHUVALLI
R/AT CHIKKAMAGARA HALLI VILLAGE,
ALDUR POST, CHIKKAMAGALORE TALUK
CHIKKAMAGALORE DISTRICT - 577101
2. SRI KOUSHIK V D
S/O DHARMA GOWDA
AGED ABOUT 36 YEARS
DIRECTOR OF PRIMARY
AGRICULTURE CREDIT
CO-OPERATIVE SOCIETY LTD
KUDHUVALLI
R/AT VALAGERHALLI VILLAGE,
HALSAMANE POST, VASTARE HOBLI,
CHIKKAMAGALORE TALUK
CHIKKAMAGALORE DISTRICT - 577101
3. SMT AKSHATHA POORNESH
W/O POORNESH,
AGED ABOUT 40 YEARS
DIRECTOR OF PRIMARY
AGRICULTURE CREDIT
CO-OPERATIVE SOCIETY LTD
KUDHUVALLI, DINNEKERE VILLAGE,
KUDUVALLI POST,
CHIKKAMAGALORE TALUK
CHIKKAMAGALORE DISTRICT - 577101
4. SRI SYED AHMED
S/O LATE VAJJIR,
7
AGED ABOUT 64 YEARS
DIRECTOR OF PRIMARY
AGRICULTURE CREDIT CO-OPERATIVE
SOCIETY LTD, KUDHUVALLI,
R/AT CHITTUVALLI VILLAGE,
KELAGUR POST
CHIKKAMAGALORE DIST - 577101
5. SRI RAGAVENDRA
S/O LATE ANNEGOWDA
AGED ABOUT 32 YEARS
DIRECTOR OF PRIMARY
AGRICULTURE CREDIT COOPERATIVE
SOCIETY LTD, KUDHUVALLI,
R/AT SIRAVALALU VILLAGE,
VASTARE POST, VASTARE HOBLI,
CHIKKAMAGALORE TALUK
CHIKKAMGALORE DISTRICT - 577101
...PETITIONERS
(BY SRI SANDESH T B, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATION,
M.S. BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU - 01
REPRESENTED BY ITS SECRETARY
2. THE CO-OPERATIVE ELECTION COMMISSION
NGO COLONY, WILSON GARDEN
BENGALURU KARNATAKA 560027
REPRESENTED BY ITS SECRETARY
3. ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES
CHIKKAMAGALURU SUB-DIVISION
CHIKKAMAGALURU - 577101.
4. PRIMARY AGRICULTURE CREDIT
CO-OPERATIVE SOCIETY LTD
KUDHUVALLI VILLAGE
CHIKKAMAGALORE TALUK
CHIKKAMGALORE DISTRICT - 577101
8
5 SPECIAL OFFICER
PRIMARY AGRICULTURAL CREDIT
CO OPERATIVE SOCIETY LTD
KUDHUVALLI VILLAGE
CHIKKAMAGALORE TALUK
CHIKKAMGALORE DISTRICT - 577101
...RESPONDENTS
( BY SRI SIDDHARTH BABURAO, AGA FOR R1 TO R3
SRI H B RUDRESH, ADVOCATE FOR C/R4 & R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
BY THE R3 ON 04.09.2023 IN NO.AR.26/C.06/PAXQ/SECTION 31(1)CR-
44/2023-24 AT ANNEXURE-B IN SO FAR AS THE PETITIONERS ARE
CONCERNED AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.12.2023 COMING ON FOR 'PRONOUNCEMENT OF
ORDER' THIS DAY, THE COURT MADE THE FOLLOWING:-
COMMON ORDER
Since common questions arise for consideration in the present
writ petitions they are taken up together for consideration.
2. W.P. No.22398/2023 is filed seeking for the following reliefs:
"i. Issue a writ of certiorari quashing the
impugned order bearing No.
SA.NI47/Vishesadhikari Nemakati/06/2023-24
dated 19.09.2023 passed by Respondent No.5
vide Annexure G.
ii. Issue a writ of mandamus or any other
appropriate writ or direction, directing the
Respondent No.2 to 5 to call for the any
Election to the vacant posts of board of
Directors for the term of 2023-2028 of
Respondent No.3 Society as per Section 29-E
of the Karnataka Co-operative Societies Act,
1980 forthwith.
iii. Pass such other orders as may be
appropriate in the facts and circumstances of
the case, in the ends of justice and equity."
3. W.P.23943/2023 is filed seeking for the following reliefs:
(a) Issue a writ of certiorari or any other
appropriate writ or order or direction quashing
the order passed by the 3rd respondent on
22.09.2023 in No.SaNi-
43/Administrative/XSN/CR-09/2023-24 at
Annexure-C in so far as the petitioners are
concerned; and
(b) Issue any appropriate writ or order or
direction declaring that the order passed by
the 3rd respondent on 22.09.2023 at
Annexure-D, shall not have any effect on the
petitioners and the place of the petitioners in
the Board of the Respondent No.4 society
have not become vacant, notwithstanding the
passing of the order dated 22.09.2023 at
Annexure-C by the Respondent No.3 herein;
and
(c) consequently, issue any other appropriate
writ or order or direction directing the
respondents herein not to take any action to
fill the place of the petitioners in the Board of
the Respondent No.4 society, till the
completion of their term, notwithstanding the
order dated 22.09.2023 at Annexure-C passed
by the Respondent No.3; and
(d) to issue appropriate writ or order or
direction directing the respondents herein to
fill up only those place of Directors which have
become vacant in the Board of the Respondent
No.4 society, owing to the resignations, either
by conducting election or by co-option; and
(e) Grant any other reliefs as deemed fit by
this Hon'ble Court in the facts and
circumstances of the case including awarding
of the cost, in the interest of justice and
equity.
4. W.P. No.23318/2023 is filed seeking for the following reliefs:
"a) Issue a writ of certiorari or any other
appropriate writ or order or direction quashing
the order passed by the 3rd respondent on
04.09.2023 in No.AR-26/C-06/PAXQ/Section
31(1)CR-44/2023-24 at Annexure-B in so far
as the petitioners are concerned; and
(b) Issue any appropriate writ or order or
direction declaring that the order passed by
the 3rd respondent on 04.09.2023 at
Annexure-B, shall not have any effect on the
petitioners and the place of the petitioners in
the Board of the Respondent No.4 society
have not become vacant, notwithstanding the
passing of the order dated 04.09.2023 at
Annexure-B by the Respondent No.3 herein;
and
(c) consequently, issue any other appropriate
writ or order or direction directing the
respondents herein not to take any action to
fill the place of the petitioners in the Board of
the Respondent No.4 society, till the
completion of their term, notwithstanding the
order dated 04.09.2023 at Annexure-B passed
by the Respondent No.3; and
(d) to issue appropriate writ or order or
direction directing the respondents herein to
fill up only those place of Directors which have
become vacant in the Board of the Respondent
No.4 society, owing to the resignations, either
by conducting election or by co-option; and
e) Grant any other reliefs as deemed fit by
this Hon'ble Court in the facts and
circumstances of the case including awarding
of the cost, in the interest of justice and
equity.
5. The relevant facts in W.P. No.22398/2023 are that the petitioners
were elected as Directors of Respondent No.3 - Society for the term
2023 to 2028 in the elections held on 26.07.2023, wherein a total of 12
Directors were elected. The first meeting for electing President and
Vice-President of Respondent No.3 - Society was scheduled on
12.08.2023. However, on that date, only six Directors were present and
hence, for want of quorum, the meeting was adjourned. Thereafter, the
next meeting was held on 01.09.2023 and all 12 Directors were present
and Petitioner Nos.1 and 2 were elected as the President and Vice
President of Respondent No.3 - Society respectively. On the said date,
after the election of Petitioner Nos.1 and 2, six Directors tendered their
resignations without any valid reasons and on 19.09.2023, a Special
Officer was appointed to Respondent No.3 - Society. Being aggrieved,
the above writ petition is filed.
6. The relevant facts in W.P. No.23318/2023 are that 12 members
including the Petitioners were elected as the Directors of Respondent
No.4 - Society on 09.11.2020 and the term of office was five years.
That on 04.09.2023, seven elected Directors, due to various reasons,
tendered their resignations to their Directorship of Respondent No.4 -
Society by the order dated 04.09.2023, a Special Officer was appointed.
Being aggrieved, the writ petition is filed.
7. The relevant facts in W.P. No.23943/2023 are that the Petitioners
were elected as Directors of Respondent No.4- Society on 28.02.2020
and in the said election, 12 Directors were elected to the Board of
Respondent No.4- Society and the term of the Board was up to
27.02.2025. That on 02.09.2023, nine Directors tendered their
resignations. Hence, by order dated 22.09.2023, a Special Officer has
been appointed. Being aggrieved, the writ petition is filed.
8. It is forthcoming from all the aforementioned writ petitions that
since majority of the Directors who constituted the Board of the Society
resigned, a Special Officer was appointed to conduct the elections. The
Directors who did not tender their resignations have filed the writ
petitions contending inter alia that elections to only those posts of
Directors who have tendered their resignations were required to be held
and not for entire Board of the Society, since the Petitioners in these
Writ Petitions have not tendered their resignations.
9. It is the contention of the Petitioners that since the term for
which they have been elected still remains, elections to the posts held
by them are not required to be held. In support of their contentions they
have relied on various judgments and various provisions of the
Karnataka Co-operative Societies Act (hereinafter referred to as the
'Act') and the Karnataka Co-operative Societies Rules (hereinafter
referred to as the 'Rules') which shall be referred to during the course
of the order.
10. Learned Additional Advocate General representing the State
opposing the reliefs sought for in the Writ Petitions referring to various
provisions of the Act contends that having regard to the deeming
provision contained in Section 31(3) of the Act, all the Directors who
constitute the Board are deemed to have vacated their offices upon the
appointment of the Special Officer for conducting of elections and
submits that holding of elections to the entire Board of the Society is
just and proper.
11. In view of the contentions putforth by both the learned counsels,
the question that arise for consideration of these writ petitions are
'whether upon the resignation of few of the members of the Board of a
Society, whether elections are required to be held to the posts of all the
Directors including the posts of Directors who have not tendered their
resignations?'
12. In order to consider the said question, it is necessary to note the
relevant statutory provisions which are contained in the Act.
i) Section 18-A of the Act stipulates as follows:
18-A. Cessation of membership.- A person shall
cease to be a member of a co-operative society,-
(a) in the case of an individual, on his or her,-
(i) death;
(ii) resignation;
(iii) disqualification and cessation;
(iv) ......
ii) Section 28-A(4) of the Act stipulates as follows:
Subject to the provisions of Sections 29-A and
39-A, the term of office of the members of [the
board shall save as otherwise] [five years from the
date of election] and they shall be deemd to have
vacated office as such members of the [board] on
the date of completion of the said term.
iii) Section 29-A of the Act stipulates as follows:
29-A. Commencement of term of office. (1)[The
term of office of the members of the [board]] shall
commence on the date on which the majority of the
elected members of the [board] assume office or
the term of the outgoing [board] expires, whichever
is later.]
[(2) Notwithstanding anything contained in this Act
or the rules or the bye-laws of a co-operative
society, the [board] shall be deemed to be duly
constituted when [the majority of the elected
members of the [board] are available to function as
members of the [board] after the [*****] election.
[29-E. Filling up of casual vacancy in the office
of members of the [Board].-Any vacancy in the
office of members of the [board] of a co-operative
society by reason of death, resignation, removal or
otherwise, shall be filled up in such manner as may
be specified in the bye-laws of such society:
[Provided that the co-operative election commission
shall conduct the election to fill up any vacancy in
the office of the director of the board if the
remaining term of office of the board is more than
half of its original term:
Provided further that the board may fill up a casual
vacancy on the board by nomination out of the
same class of members in respect of which the
casual vacancy has arisen, if the remaining term of
office of the board is less than half of its original
term]:
[Provided also that, if the board fails to fill up such
casual vacancy within three months of the date of
occurrence, the Registrar shall fill up through
nomination.]
iv) Section 31(1), (2) and (3) of the Act stipulates as follows:
31. Appointment of Special Officer [by the
Registrar].-(1) Where the Registrar is of the
opinion that a co-operative society is not
functioning in accordance with the provisions of the
Act, rules or bye-laws on account of the number of
members of the [Board] falling short of the
required number to form a quorum due to
disqualification, resignation or death or removal of
a member [***], the Registrar may,
notwithstanding anything contained in this Act,
rules or bye-laws, by order appoint a Special
Officer for such co-operative society, for such
period not exceeding six months.[The Registrar
may, [*****] for the reasons to be recorded in
writing extend the period of such appointment for a
further period of six months at a time, and in any
case such extension shall not exceed one year in
the aggregate]:
[Provided that the Special Officer so appointed
shall not continue for a period beyond three
months in respect of a society in co-operative
credit structure.]
(2) Before making an order under sub-section (1),
it shall not be necessary for the Registrar to give
any co-operative society or person likely to be
affected by such order, an opportunity to state its
or his objection, if any.
(3) On the issue of the order under sub-section
(1),-
(a) the members of the [board] of the co-operative
society,if any, shall vacate and shall be deemed to
have vacated their offices; and
(b) the Special Officer shall be deemed to have
assumed charge of the affairs of the co-operative
society.
v) Rule 14-AK(4) of the Rules stipulates as follows:
(4) The number next to fifty per cent of the
strength of the board as specified in the bye-laws
shall form the quorum for a meeting of the board
[the members who are all attending the meeting
shall sign in the book kept for the purpose before
commencement of the board meeting]. If there is
no quorum at the time of transacting any business
in any meeting of the board, no such business shall
be transacted.
13. It is relevant to note that Section 18-A of the Act provides for
cessation of membership and Section 18-A(a) of the Act contemplates
the four situations where an individual member ceases to be a member
of the Society.
14. Section 28-A(4) of the Act stipulates the term of office of the
members of the Board as five years from the date of election. Section
29-A of the Act stipulates commencement of term of office.
15. Section 29-E of the Act stipulates that a casual vacancy in the
office of members of the Board shall be filled up by an election to be
conducted by the Cooperative Election Commission if the remaining
term of office of the Board is more than half of the original term and
the Board may fill up a casual vacancy on the Board by nomination out
of the same class of members if the remaining term of office of the
Board is less than half of its original term. Section 29A(1) of the Act
stipulates that the term of office of the members of the Board shall
commence on the date on which majority of the Board are available to
function.
16. Section 31(1) of the Act empowers the Registrar to appoint a
Special Officer if the Society is not functioning on account of the number
of members of the Board falling short of the required number to form a
quorum. It is relevant to note that in Section 31(1) of the Act there is a
specific non obstinate clause which specifically stipulates that the
Registrar may 'notwithstanding anything contained in this Act, Rules or
bye-laws' by order appoint a Special Officer. Section 31(3) of the Act
stipulates on the issue of the order under sub Section (1) the members
of the Board 'shall vacate' and "shall be deemed to have vacated
offices' and Special Officer shall be deemed to have assumed the charge
of the affairs of the Co-operative Society.
17. Rule 14-AK(4) of the Rules stipulates that fifty per cent of the
strength of the board shall form the quorum for a meeting of the Board.
18. A Co-ordinate Bench of this Court in the case of
K.T.Nijalingappa and another Vs The State of Karnataka1 on which
reliance is placed by the learned counsel for the petitioners was
considering a fact situation where elections to the Society was held on
ILR 2014 KAR 2329
21.03.2011 to elect seven members from class 'A' and two members
from class 'B'. The nomination of all the members who had filed their
nominations for class 'A' were rejected and the two members of class 'B'
were elected to the posts. Since majority of the elected members were
not available to function as members of the Committee an Administrator
was appointed which was impugned in the writ petition, insofar as the
elections that was scheduled to be held to the two members of Class 'B'
who were elected. This Court upon considering the relevant statutory
provisions held as follows:
16. .....A conjoint reading of these two provisions
makes it clear that the Board of the Co-operative
Society has got a fixed term and the term of office
of the members of the Board will commence on the
date on which the majority of the elected members
of the Board assume office or the term of the
outgoing board expires, whichever is later. If the
Board is not constituted on the date of expiry of
the term of office of the Board and if elections are
not held within the time specified in Section 29-A,
the Registrar shall be deemed to have assumed
charge as Administrator and he shall discharge the
functions of the Board of Management. Nowhere in
these provisions it is stated that once such
Administrator assumes office on account of the
failure to elect majority of the members of the
Board, the already elected members will be
deemed to have vacated their office. Such a
consequence is not contemplated under the
provisions of the Act. The same cannot be inferred
nor such an inference is warranted. No such
inference also can be drawn by reading these
provisions. It is well established that when the WP
795-796/2012 words of a statute are clear, plain or
unambiguous and are reasonably susceptible of
only one meaning, the Courts are bound to give
effect to that meaning....
17. There is no ambiguity in the language used in
the aforesaid provisions. Therefore, it cannot be
inferred that if majority of the members are not
elected for any reason, on the Administrator
assuming the charge, the other elected members
shall be deemed to have vacated their office and
fresh election shall be held to all the posts in the
Board. For no fault on the part of the elected
candidates/petitioners, they cannot be saddled with
such consequence. It is also not in public interest
to hold election yet again for these posts, when
their election has not been in any manner cancelled
or nullified. Therefore, the contention urged by the
learned counsel for the petitioner deserves to be
accepted.
(emphasis supplied)
19. A Co-ordinate Bench of this Court in the case of
Sharanabasappa V/s. The State of Karnataka2 was considering a
fact situation wherein members of the Board of the Society were elected
on 23.05.2017 of the term of office was for a period of five years.
Thereafter, six members were resigned and having regard to the
vacancy that arose, a Special Officer was appointed and elections were
proposed to be held. The same was impugned in the said writ petitions
and the contention putforth was that elections were to be held only to
those posts where the vacancy arose on account of the resignation of
the members and the proceedings directing holding elections to all the
seats of the Board afresh is required to be interfered with. This Court
considering the various statutory provisions has held as follows:
ILR 2018 KAR 238
22. .......If the definition of word 'casual' is read in
conjunction with reference to the provisions of Sub-
rule 4 of Rule 14-AK and Sub-section (2) of Section
28(A) of the Act, then it must be held to mean that
the elections or nominations are impermissible
under the provisions of Section 29(E), when the
total sum of members to be elected/nominated is
less than the strength stipulated under Sub-rule
(4) of Rule 14-AK. If the number of vacancies are
more than the percentage of strength as provided
in the said Rule, then the provisions of Section 31
of the Act would not be attracted.
23. ......The provisions of Section 30 (6) of the Act
clearly mandates that notwithstanding anything
contained in this Act, the Registrar by an order
shall appoint a Special Officer. The provision is in
the nature of non-obstante clause. The provision
does not vest the authority in the circumstances
enumerated with any option. In the event of
occurrences of the circumstances enumerated in
the provision, the provision does not vest any
discretion to the authority in respect of
implementation of the provisions of Section 31 of
the Act. Hence, it cannot be gainfully argued that
the Act vests a discretion in the authority either to
invoke the provision of Section 29(E) or Section 31
of the Act. This conclusion by the Court is further
fortified by the provisions of Sub-section (3) of
Section 31 of the Act.
24. The deeming provisions not only provides for
vacation of seats but also provides for assumption
of the charge i.e., nominating the person to act and
discharge the functions of the Special Officer as
envisaged under the provisions. The appointment
of a Special Officer is mandated by operation of law
and does not require any executive act except to
implement the act in letter and spirit. Hence, the
contention on behalf of the petitioner that the
authority has erred in choosing to exercise the
powers vested under Section 31 of the Act is
without substance and requires to be rejected and
is accordingly rejected.
(emphasis supplied)
20. A Co-ordinate Bench of this Court in the case of S.Shivanna Vs.
The State of Karnataka and others3 was considering a fact situation
where the election to the Society was held on 07.03.2021 and 13
members were elected. Thereafter, six directors submitted their
resignations on 30.09.2021 and in view of the vacancy created
consequent to the said resignations an Administrator was appointed and
fresh elections were sought to be held which was challenged by the
Directors who had not submitted their resignations. This Court noticing
the relevant statutory provisions and placing reliance on the judgment
in the case of K.T.Nijalingappa1 held that the election was required to
be held only for the vacancy that arose on account of the resignations of
six Directors. Although, the judgment in the case of Sharanabasappa2
was cited, this Court held that the same was not applicable to the facts
of the said case.
21. It is clear from a perusal of the said judgments and as rightly
contended by the learned Additional Advocate General, who seeking to
distinguish the judgments in the case of K.T.Nijalingappa1 and
Shivanna3 that in the said cases the deeming provisions as
contemplated under Section 31(3) of the Act has not been considered
which has been considered in the case of Sharanabasappa2.
WP No.20859/2021 - DD No.10.11.2022
22. Learned counsel for the petitioners vehemently contend that the
situation that is arising in the present cases are a deliberate attempt by
a few persons to hold elections to the entire Board although the
Petitioners have already been elected and an interpretation is to be
adopted which does not create an anomalous situation of holding of
repeated elections merely due to exigencies created out of political or
other compulsion/s. Hence, learned counsel for the petitioners seeks for
upholding the view as held in the case of K.T.Nijalingappa1 and
Shivanna3.
23. It is relevant to notice from the aforementioned that in the cases
of K.T. Nijalingappa1 and Shivanna3, the interpretation of Section
31(1) and (3) of the Act having not been noticed whereas in the case of
Sharanabasappa2, the same has been adequately appreciated.
24. Having regard to the wording of the respective provisions, it is
clear that if upon occurrence of an eventuality as contemplated under
Section 31(1) of the Act, the resultant situation as contemplated under
Section 31(3) which specifically stipulates that members "shall vacate
and shall be deemed to have vacated their offices" would automatically
occur. It is clear that consequent to a situation occurring as
contemplated in Section 31(1) of the Act and a special officer being
appointed, having regard to the specific wordings contained in Section
31(3) of the Act, the said situation would automatically occur and the
question of exercising any discretion as sought to be contended by the
Petitioners does not arise.
25. In view of the aforementioned, the interpretation of this Court as
made in the case of Sharanapasappa2 is required to be followed and
hence, the question framed for consideration is answered in the
Affirmative.
26. In view of the aforementioned, writ petitions are dismissed as
being devoid of merit.
SD/-
JUDGE
BS
