Disposed

Primary Agriculture Credit v. State of Karnataka

Karnataka HC20 Feb 2019WP/107092/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka condoned the disqualification of members under Section 20(2)(a-iv)(a-v) of the Karnataka Co-operative Societies Act for the period 2013-2019 to prevent elections from becoming farcical, allowing members to vote but not contest.

What did the court decide?

Disqualification suffered by members for the period 2013-14 to 2018-19 stands condoned; members permitted to vote but not contest elections.

Primary Agriculture Credit Vs State of Karnataka — Cooperative Societies | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF FEBRUARY 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G.NARENDAR

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WRIT PETITION NOS.107092-94/2018 (CS-EL/M)

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BETWEEN

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PRIMARY AGRICULTURE CREDIT CO-OPERATIVE SOCIETY LIMITED, JOYISARAHARHALLI, TQ: RANEBENNUR, DIST: HAVERI. REPRESENTED BY ITS PRESIDENT, SHRI.SHANKRAPPA P. CHAOUDAPPALAVAR AGE: 45 YEARS, OCC: AGRICULTURE, R/O: JOSARAHARHALLI, TQ: RANEBENNUR, DIST: HAVERI.

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PRIMARY AGRICULTURE CREDIT CO-OPERATIVE SOCIETY LIMITED, KOTIHAL, TQ: RANEBENNUR, DIST: HAVERI, REPRESENTED BY ITS PRESIDENT, SHRI.ASAD ULLAKHAN J. SOUDAGAR, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: KOTIHAL, TQ: RANEBENNUR, DIST: HAVERI.

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PRIMARY AGRICULTURE CREDIT CO-OPERATIVE SOCIETY LIMITED, TAMBUR, TQ: KALAGHATAGI, DIST: DHARWAD, REPRESENTED BY ITS PRESIDENT, SHRI.ANANT BALAPPA DALAVI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: TAMBUR, TQ: KALAGHATAGI, DIST: DHARWAD.

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... PETITIONERS

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(BY SRI. LAXMAN T. MANTAGANI, ADV.)

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AND

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STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATIION, M.S. BUILDING, 6TH FLOOR, BENGALURU-560001.

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CO OPERATIVE ELECTION AUTHORITY 3RD FLOOR, SHANTINAGAR, T.T.M.C. "A" BLOCK, SHANTINAGAR, BENGALURU-560027, REPRESENTED BY ITS SECRETARY.

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THE REGISTRAR OF CO-OPERATIVE SOCIETIES GOVERNMENT OF KARNATAKA, NO.1, ALI-ASKAR ROAD, BENGALURU-560052.

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CHIEF EXECUTIVE OFFICER K.C.C. BANK, DHARWAD, SUBHASH ROAD, DHARWAD-580001.

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DISTRICT CO OPERATIVE ELECTION OFFICER AND DEPUTY COMMISSIONER OF DHARWAD, D.C. COMPOUND, DHARWAD.

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RETURNING OFFICER OF K.C.C. BANK AND ASSISTANT COMMISSIONER, DHARWAD SUB-DIVISION, DHARWAD-580001. ... RESPONDENTS

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(BY SRI.RAVI. V. HOSAMANI, AGA. FOR R1 AND R3, SRI. HEMANTHKUMAR L HAVARAGI, ADV. FOR R2 AND R5, SRI. C.V.ANGADI, ADV. FOR R4, R6 SERVED)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF APPROPRIATE NATURE TO DECLARE THAT SECTION 20(2) (A-IV) AND (A-V) THE KARNATKA CO-OPERATIVE SOCIETIES ACT IS ULTRA VIRES THE LEGISLATIVE COMPETENCE AND ARTICLE 243ZI AND 243ZO OF THE CONSTITUTION OF INDIA AND ETC.

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THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The writ petitions were preferred calling in question the validity and the vires of the amended provision of Section 20(2)(a-iv)(a-v).

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This Court by a detailed interim order taking note of the prevailing situation, where large numbers of voters had become disentitled, in view of the amendment, deemed it fit to permit such of those members, who had suffered a disqualification under the amended provision to cast their votes.

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Such an exceptional arrangement was made in view of the fact that a vast majority of the voters were alleged to have suffered the disqualification. Taking note of the fact that in some of the societies, voters in excess of 60 to 70% on the rolls stood disenfranchised on account of the amendment, this Court was of the opinion that the democratic process of holding elections would be reduced to a mockery and render the process farcical and hence, as a one time measure deemed it fit

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to permit the voters who had suffered such disqualification under the amended provisions to caste their votes. The order by this Court, in exception to the operation of the provisions, was also acknowledged by the State. The said order dated 26.12.2018 passed in W.P. Nos.57154-55/2018 and connected writ petitions reads as under:

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“All these petitions are taken up together for consideration on interim prayer, as similar set of facts and question of law are involved.

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Learned HCGP accepts notice on behalf of respondent Nos.2, 4 and 5.

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Issue emergent notice to other

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respondents.

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Heard learned counsel for the petitioners and learned Addl. Advocate General along with learned Additional Government Advocate on interim order relief prayed for in the petitions.

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The brief facts are that petitioners are members of the respective primary/secondary

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societies under the Co-operative Societies Act. The legislature by amendment Act 3 of 2013 was pleased to amend Section 20 by inserting clauses (a-iv) and (a-v). The purport of the amendment introduced by way of insertion which came into effect from 11/2/2013 was to prevent a member from casting his vote in the Annual General Meeting, if such a member has failed to attend three Annual General Meetings, out of last 5 Annual General Meetings conducted by the society.

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This Court after examining the legal position was of the opinion that the operation of the amended provision could only be prospective in operation and the nonattendance prior to coming into force of the provision could not be a ground for enforcing the provision under the clause (a-iv) and (a-v) of Section 20 of the said Act, against a member who has failed to attend three meetings prior to the amended provision coming into force, as the minimum required 5 meetings would not have been completed. There is no dispute to the fact that the Annual General Meetings have to be conducted once in a year and the society would hold 5

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Annual General Meetings over a span of 5 years which is the stipulated period of the elected body.

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The fact remains that hundreds of writ petitions have been preferred and this Court has been pleased to grant interim relief entitling the petitioners to cast their votes in the Annual General Meetings that have been held in respect of the societies who completed the terms of office and in respect of whom the elections have been held in 2018. In respect of those societies the term of the committee would come to end in 2018. In fact in respect of one of the petitioners, Annual General Meeting is slated to be held by the end of this month and elections are due to the remaining societies, as the Annual General Meeting to the elections were held either in 2013 or 2014.

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Hence, this Court in view of large number of petitions filed on the similar grounds, asserting their right to participate and cast their votes without reference to the amended provision of Section 20(a-iv) (a-v), is of the opinion that as one time measure elections may be permitted to be conducted

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and members be permitted to vote without reference to clause (a-iv) (a-v) of Section 20 of the Act. In some of the societies, the total number of voters entitled to vote has been reduced to double digit figures thereby virtually making a mockery of the democratic process and rendering the elections a farcical exercise on account of the fact that a large number of voters running into thousands would be deprived of their right to cast their votes, if the amended provisions are implemented. Hence, the following interim order;

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The respondents/The State Cooperative Election Authority, Joint Registrar of Co-operative Societies and Election Officer and Joint Registrar of Co-operative Societies shall hold elections to the societies which are completing their term of office and in respect of which elections are being held for the first time after coming into effect of the amended provision and in respect of such societies, the respondent- State shall ensure that the voters who are otherwise entitled to cast their votes shall be permitted to cast their votes without reference to Clause (a-iv) (a-v) of Section 20 of

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the said Act. It is made clear that those voters who have attracted the disqualification under Clause (a-iv) (a-v) of Section 20 of the said Act, shall not be permitted to contest in the elections.”

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Thereafter, the State Government on an erroneous understanding was pleased to issue the circular dated 03.01.2019 and thereby attempted to exclude the applicability of the above order to elections that were to be held in 2019. Upon an application being filed, matter was heard and by order dated 18.01.2019 this Court was pleased to clarify the import of the earlier order.

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The order dated 18.01.2019 passed in W.P. Nos.57154-55/2018 and connected writ petitions read as under:

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“The instant application IA-2/2019 is preferred by the petitioners seeking for a clarification in the light of the Circular dated 03.01.2019 whereby the State Co-operative Election Authority after taking note of the order passed by this Court on 26.12.2018

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has been pleased to instruct the Returning Officers as well as the concerned authorities not to permit the voters who have suffered a disqualification under Section 20 (2) (a-iv) and (a-v) of the Karnataka Co-operative Societies Act in respect of those societies where the election is being held in the year 2019 and that the preparation of election rolls should be in consonance with the order passed by this Court.

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This Court has by order dated 26.12.2018 after taking note of the fact that large number of voters stood disqualified and thereby rendering farcical the democratic process and making a mockery of the elections, it deemed necessary to direct the authorities to permit all such voters who have suffered a disqualified under Section 20 (2) (a-iv) and (a-v) of the Act to participate in the election by way of casting their votes. The State Election Authority has now issued the Circular purportedly in compliance with the directions issued by this Court. On a close scrutiny of the Circular, it is apparent that the Election Authority has failed to take note of the observations made by the Court in the

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preceding paragraphs and the tenor of the order.

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It is not in dispute that in respect of elections held in the year 2018, the members similarly placed have been permitted to cast their votes without reference to the purported disqualification said to have been suffered by the members pursuant to insertion of clause (a-iv) and (a-v) of sub Section 2 of Section 20 of the Act. This Court while granting leave by order dated 26.12.2018 had clearly taken note of the fact that the Annual General Body Meetings having been held in the years 2013 and 2014 and hence was pleased to direct that the voters be permitted to vote in the elections which are being held after the coming into effect of the amended provisions. This ought to have been read in conjunction with the unnumbered paragraph No.1 in page 2 of the order wherein this Court while granting the interim order in one of the petitions was pleased to observe with regard to the retrospective application of the provision. It is not the case of the official respondents or the Election Authority that this is the second election being conducted in

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respect of the individual Society after the coming into effect of the provisions. Hence, the Circular appears to be on a misreading and erroneous interpretation of the order passed by this Court. In that view of the matter, it is ordered that the members of all the Societies in respect of which elections were held in the year 2014 and in respect of which the elections are to be held in 2019, the members shall be permitted to cast their votes without reference to the disqualification said to have been suffered by them pursuant to the amended provisions of clauses (a-iv) and (a-v) of Section 20 (2) of the Act.

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It is further clarified that the candidates who have suffered disqualification under the provisions of sub Section 2 of Section 20 clauses (a-iv) and (a-v) shall not be permitted to contest the elections.

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Hand delivery of this order is permitted.”

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In that view of the matter, it has to be construed that the absence of the members or lack of participation in the meetings or non-participation in the

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business of the society has virtually being condoned by the State. The fact remains that the vast majority of the Societies operate in the rural areas and the members are illiterate and semiliterate and there is every possibility that the implications of the amendment had not been known to them.

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Be that as it may. It is settled law that ignorance of law is no excuse. But keeping in view the fact situation, it is just and necessary that the disqualification, if any, suffered by members on account of the amendment in respect of the co-operative period for the years 2013-14 to 2018-19 shall stand condoned. The members shall not be entitled to the protection of a similar nature in respect of the forthcoming years and this Court hopes that the societies would make an effort to publicize the fact and educate the members of the implications of non-observance and non-compliance with the provisions of law. Accordingly, the petitions stand disposed off.

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Learned counsel for the petitioners fairly submit that they do not press the challenge to the validity of the amendments to the Act and vires of the provisions of Section 20(2)(a-iv) and (a-v) of the Karnataka Co-operative Societies Act.

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Submission is placed on record.

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The writ petitions stand ordered accordingly.

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Rsh

Primary Agriculture Credit v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Primary Agriculture Credit v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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