Karnataka High Court

Gangolli Primary Fishermens Co ... vs State Of Karnataka on 5 September, 2024

Author: S.R.Krishna Kumar

Bench: S.R.Krishna Kumar

                                       -1-
                                                   NC: 2024:KHC:36417
                                                WP No. 23521 of 2024




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 5TH DAY OF SEPTEMBER, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                     WRIT PETITION NO. 23521 OF 2024 (CS-RES)
            BETWEEN:
            GANGOLLI PRIMARY FISHERMENS CO OPERATIVE
            SOCIETY LTD
            A CO OPERATIVE SOCIETY REGISTERED UNDER
            KARNATAKA CO OPERATIVE SOCIETIES ACT 1959
            HAVING ITS REGISTERED OFFICE AT BUNDER ROAD,
            GANGOLLI VANDSE HOBLI,
            KUNDAPURA TALUK,
            UDUPI DISTRICT - 576216
            REPRESENTED BY ITS MANAGER
                                                         ...PETITIONER
            (BY SRI. DHANANJAY JOSHI, SENIOR COUNSEL FOR
                SRI. PURNACHANDRA M. PURANI K., ADVOCATE)


            AND:
            1.   STATE OF KARNATAKA
                 DEPARTMENT OF CO OPERATION ,
Digitally        ROOM NO 610, 6TH FLOOR,
signed by        3RD GATE, M S BUILDING
Vandana S        BENGALURU - 560001
Location:        REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY
HIGH
COURT OF
KARNATAKA   2.   THE DEPUTY REGISTRAR OF CO OPERATIVE
                 SOCIETIES,
                 UDUPI DISTRICT
                 RAJATHADRI, A BLOCK,
                 1ST FLOOR,
                 DISTRICT ADMINISTRATIVE OFFICES ENCLAVE
                 MANIPAL - 576104.

            3.   THE ASSISTANT REGISTRAR OF CO OPERATIVE
                 SOCIETIES,
                 KUNDAPURA SUB DIVISION,
                                      -2-
                                                    NC: 2024:KHC:36417
                                              WP No. 23521 of 2024




     KUNDAPURA
     UDUPI DISTRICT - 576201.

4.   MAHAKALI MAHILA CO OPERATIVE SOCIETY LTD
     A CO OPERATIVE SOCIETY REGISTERED UNDER
     KARNATAKA CO OPERATIVE SOCIETIES ACT 1959
     HAVING ITS REGISTERED OFFICE AT LEWIS COMPLEX,
     NH - 66, TRASI, KUNDAPURA TALUK
     UDUPI DISTRICT - 576235
     REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
                                            ...RESPONDENTS
(BY SMT. PRATHIBHA R.K., AGA FOR R-1 TO R3;
    SRI. K. SHREEHARI, ADVOCATE FOR R-4)


      THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE ORDER DTD.
28.06.2024 BEARING NO. SANI38.RSR/62/RGN/2024-25 PASSED BY
R-3 (ANNX-A) AND CONSEQUENTLY SET ASIDE THE
REGISTRATION CERTIFICATE DTD. 28.06.2024 BEARING NO. 51247
IN FAVOUR OF R-4 (ANNX-A1) AND ETC.
    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR


                             ORAL ORDER

In this petition, the petitioner seeks the following reliefs:

"i. Set aside order dated 28.06.2024 bearing No.SANI38:RSR/62/RGN/2024-25 passed by Respondent No.3 (Annexure-A) and consequently set aside the Registration Certificate dated 28.06.2024 bearing No.51247 in favour of Respondent No.4 (Annexure-A1);

ii. Direct the Respondent No.3 not to register any new co- operative society relating to fisheries in Vandse Hobli, Kundapura Taluk, Udupi District;

NC: 2024:KHC:36417

iii. Award costs of these proceedings;

iv. Grant such other order as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interests of justice."

2. Heard learned counsel for the petitioner and learned

AGA for respondent Nos.1 to 3 and learned counsel for respondent

No.4 and perused the material on record.

3. In addition to reiterating the various contentions urged

in the petition and referring to the material on record, learned

counsel for the petitioner submits on 14.06.2024, respondent No.3

has granted permission to respondent No.4 to form a Society,

pursuant to which respondent No.3 passed the impugned order

dated 28.06.2024 registering respondent No.4 as a Co-operative

Society under Section 7 of the Karnataka Co-operative Societies

Act, 1959 (for short "the said Act of 1959") r/w. Rule 3-B of the

Karnataka Co-operative Societies Rules, 1960 (for short "the said

Rules of 1960"). It is the grievance of the petitioner that the

petitioner - Society was established on 28.02.1939 within the same

vicinity and same area as that of respondent No.4 and respondent

No.3 has proceeded to pass the impugned order dated 28.06.2024

in contravention of Rules 13-B of the said Rules of 1960 and

NC: 2024:KHC:36417

consequently, the impugned order deserves to be set aside and the

matter be remitted back to the concerned reconsideration afresh

after hearing both petitioner and respondent No.4 in accordance

with law. In support of his contentions, learned counsel for the

petitioner placed reliance upon the judgment of this Court at

Dharwad Bench in the case of Prathamika Krushi Pattina

Sahakari Sangha Niyamita and another Vs. The Registrar of

Co-operative Societies and others - W.P.No.144571/2020 dated

24.08.2021.

4. Per contra, learned counsel for respondent No.4

submits that an order passed under Section 7 of the said Act of

1959 is appealable under Section 106 of the said Act and in the

light of the availability of equally efficacious and alternative remedy

of preferring an appeal, the petition is not maintainable. It is

submitted that the petitioner is not an aggrieved person and does

not have locus standi to prefer or maintain the petition, which is

liable to be dismissed on this ground also. Lastly, it is contended by

learned counsel for respondent No.4 and learned AGA that the

impugned order has been passed in accordance with law and does

not warrant interference by this Court in the present petition

NC: 2024:KHC:36417

especially when the petitioner has not approached this Court with

clean hands.

5. I have given my anxious consideration to the rival

consideration and perused the material on record.

6. Before adverting to the rival contentions, it would be

apposite to extract Rule 3-B of the said Rules of 1960, which reads

as under:

"Rule 3-B: Factors to be considered by Registering Authority at the time of Registration:

The Registering Authority, while according permission for the collection of initial share capital at the time of registration of a Co-operative Society, shall consider the following namely:-

(i) population in the area of operation of the proposed Co-operative Society;

(ii) assessment of economic and financial feasibility like collection of share, funds from the shareholder;

(iii) overlapping of the existing similar Co-operative Societies;

(iv) whether the draft bye-laws are in accordance with the provisions of Act and Rules."

NC: 2024:KHC:36417

A plain reading of the said Rule 3-B will indicate that before

granting permission, it is incumbent upon respondent No.3 to

consider various parameter including population in the area of

operation, assessment of economic and financial feasibility like

collection of share capital and funds from the shareholders,

whether there was any existing Co-operative Societies and

whether the draft bye laws are in accordance with the Rules etc.,

and thereafter, proceed further in the matter.

7. A perusal of the impugned order will indicate that the

various parameters referred to at Rule 3-B of the said Rules of

1960 have not been examined or taken into account by the

respondents. Under these circumstances, I am of the view that

the impugned order being contrary to the provisions of Rule 3-B,

the impugned order deserves to be quashed.

8. In so far as contention urged by learned counsel for

respondent No.4 in the light of availability of equally efficacious

and alternative remedy of preferring an appeal under Section

106(a) of the said Act of 1959, the present petition is not

maintainable, in view of my findings recorded herein before that

the impugned order is contrary to said Rule 3-B of the said Rules,

NC: 2024:KHC:36417

1960, which is a statutory provision mere availability of alternative

remedy of preferring an appeal would not come in the way of this

Court exercising its jurisdiction under Articles 226 and 227b of the

Constitution of India.

9. In so far as the contention urged by respondent No.4

that the petitioner does not have locus standi and that the

petitioner has not come to the Court with clean hands and the

nature of business of the petitioner and respondent No.4 being

different, all these issue are essentially the questions of fact which

would have to be decided by respondent No.3 after hearing the

parties and as such, the said questions cannot be gone into for the

purpose of disposal of the present petition.

10. In the result, I pass the following:

ORDER i. The Writ Petition is hereby allowed.

ii. The impugned order at Annexure-A dated 28.06.2024 passed

by respondent No.3 is quashed.

iii. The matter is remitted back to respondent No.3 for

reconsideration of the claims of both petitioner and respondent

No.4 in accordance with law.

NC: 2024:KHC:36417

iv. Petitioner and respondent No.4 undertake to appear before

respondent No.3 on 10.09.2024.

v. Respondent No.3 shall provide sufficient and reasonable

opportunity to the petitioner and respondent No.4 and pass

appropriate orders on the application filed by respondent No.4

within two weeks from 10.09.2024.

vi. Liberty is reserved in favour of the petitioner and respondent

No.4 to produce pleadings, documents etc., which shall be

considered by respondent No.3 in accordance with law.

vii. Both parties are reserved liberty to intimate respondent No.3

about the present order even if the copy of the same is not

available by 09.09.2024.