Dismissed

Smt Andali v. the State of Karnataka

Karnataka HC1 Mar 2024RP/74/2024

Case brief

AI extract

What is this about?

Revisional petition filed to review an interim order allowing voting by ineligible members of a cooperative society during the COVID-19 pandemic. The High Court of Karnataka held that exceptional circumstances precluded the statutory requirement of holding annual meetings, thus reviewing the order failed.

What did the court decide?

Review petition dismissed; petitioner retains liberty to raise election dispute under Section 70(2)(c) of the Act.

Smt Andali Vs the State of Karnataka — Cooperative Societies | Karnataka HC (2024)

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NC: 2024:KHC:8707 RP No. 74 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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REVIEW PETITION NO. 74 OF 2024

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BETWEEN:

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SMT. ANDALI AGED ABOUT 43 YEARS, 207/9E, 18^TH CROSS, COTTON WORLD ROAD, AMRUTHALLI, SAHAKAR NAGAR POST, BANGALORE – 560092.

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…PETITIONER

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(BY SRI H KANTHARAJ, SENIOR COUNSEL FOR SRI GIRISHKUMAR R, ADVOCATE)

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AND:

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA, BY THE DEPT. OF CO-OPERATION, MS BUILDING, DR. B.R. AMBEDKAR VEEDHI, BANGALORE – 560001, REPT BY ITS PRINCIPAL SECRETARY.

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KARNATAKA CO-OPERATIVE ELECTION AUTHORITY, 2^ND FLOOR, SHANTINAGAR BUS STOP, BANGALORE – 560027, BY ITS COMMISSIONER.

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THE ELECTION OFFICER CUM DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, CO-OPERATIVE ELECTION AUTHORITY, A BLOCK, TTMC BUILDING, SHANTHINAGAR, BANGALORE - 560027.

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RETURNING OFFICER,

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NC: 2024:KHC:8707 RP No. 74 of 2024

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BENGALURU VAKEELARA, SAHAKARA SANGHA NIYAMITHA BENGALURU VAKEELARA BHAVANA BUILDING, BEHIND CAUVERY BHAVAN, KEMPEGOWDA ROAD, BANGALORE - 560009.

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AMRUTESH N P, AGED ABOUT 62 YEARS, S/O LATE PUTTASWAMY N C NO. 15/1, 3^RD CROSS, SAMPIGE ROAD, MALLESWARAM, BANGALORE - 560003.

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BENGALURU VAKEELARA SAHAKARA SANGHA NIYAMITHA BENGALURU, VAKEELARABHAVANA BUILDING, BEHIND CAUVERY BHAVAN, KEMPEGOWDA ROAD, BANGALORE – 560009, REP BY ITS PRESIDENT CHINNAPPA GOWDA.

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BALAKRISHNA B, AGED ABOUT 58 YEARS, S/O LATE BAJAIAH M, NO.6, 1^ST CROSS, 3^RD STAGE, VINAYAKA LAYOUT, VIJAYANAGAR, BANGALORE - 560040.

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VATHSALA T, AGED ABOUT 43 YEARS, D/O THIMMAIAH H R, NO.1074, 11^TH MAIN ROAD, WEST OF CORD ROAD, MAHALAKSHMIPURAM, BANGALORE - 560086.

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…RESPONDENTS

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(BY SRI K SHASHI KIRAN SHETTY, AG, SRI V G BHANUPRAKASH, AAG, SRI B J ESWARAPPA, AGA FOR R1, R3, R4, SRI T L KIRAN KUMAR, ADVOCATE FOR R2,

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NC: 2024:KHC:8707 RP No. 74 of 2024

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SRI JAYAKUMAR S PATIL, SENIOR ADVOCATE AND SRI R S RAVI SENIOR, ADVOCATE FOR SRI HARISHA A S, ADVOCATE FOR R5 TO R7, SRI SARAVANA S, ADVOCATE FOR R6)

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THIS REVIEW PETITION IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 2 OF CPC 1908 R/W 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO:

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A) ALLOW THE REVIEW PETITION AND REVIEW THE ORDER DATED 19/02/2024 PASSED BY THIS HON’BLE COURT AND RESTORE THE WRIT PETITION IN WP NO. 3872/2024 IN THE INTEREST OF EQUITY AND JUSTICE.

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B) GRANT SUCH OTHER RELIFT AS THIS HON’BLE COURT DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Sri Kanthraj, learned Senior counsel appearing for the petitioner, learned Advocate General Sri Shashikiran Shetty along with Sri V G Bhanuprakash, learned Additional Advocate General and Sri B J Eswarappa, AGA for respondents 1,3 and 4, Sri Jayakumar S Patil, learned Senior counsel appearing for respondents 5 and 7 and Sri T L Kiran Kumar, learned counsel appearing for respondent No.2.

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The petition is filed invoking Section 114 read with Section 47(2) of the Code of Civil Procedure read with Articles

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NC: 2024:KHC:8707 RP No. 74 of 2024

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226 and 227 of the Constitution of India to review the order passed in Writ Petition No.3872/2024.

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Petitioner before this Court is not a party to the proceeding in Writ Petition No.3872/2024 which is disposed of vide impugned order dated 19.02.2024. Respondents 7 and 8 were not parties to the writ petition but they have been impleaded as parties to the present writ petition as they have been elected as directors of respondent-society as per the result announced after the disposal of the writ petition.

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This Court vide order dated 19.02.2024 disposed of Writ Petition 3872/2024. The operative portion of the order reads as under:

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i. The writ petition is allowed in part.

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ii. The Returning Officer is directed to announce the results of the election to the board of the petitioner Society, held on 18.02.2024.

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iii. The votes cast by the members who had the benefit of the interim order will have to be counted and taken into account before announcing the results.

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iv. In the interim order dated 09.02.2024, the votes cast by the members pursuant to the interim

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order are ordered to be kept in a separate ballot box. While counting the said votes, a separate note shall be made by noting the votes cast by such voters who voted pursuant to the interim order. In the said note, the total number of such votes(votes cast pursuant to interim order) secured by each candidates shall be mentioned. The aforementioned note be maintained by the Returning Officer and be made use of subject to all just exceptions in the election petition, if any raised.

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v. Since interim order is granted based on the concession made by the State, it is further made clear that in case any member is aggrieved by election results is at liberty to raise a dispute under Section 70(2)(c) of Act, 1959. If such a dispute is raised, the eligibility of such voters who have cast vote in the election pursuant to the interim order shall be considered in accordance with law without being influenced by the order permitting such members to vote in the election.

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The petition is filed on the premise that the order is contrary to the view taken by this Court in Sri. B Ganganna and others vs. The State of Karnataka and others ( W.P.No.29014/2023) and the mandate of Rule 13-D(2-A) of the Karnataka Co-operative Societies Rules, 1960.

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Sri Kantharaj, learned Senior counsel appearing

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for the petitioner would contend that Section 20(2)(a-iv) of the Karnataka Co-operative Societies Act, 1959 (Hereinafter referred to as the 'Act, 1959' for short) mandates that the members of a co-operative society have to attend minimum two annual general body meetings, to be eligible to vote in an election to the board of a co-operative society.

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It is further urged that admittedly the members who voted pursuant to the interim order passed by the Court did not attend minimum two annual general body meetings out of the last five annual general body meetings of the respondent-co-operative society and the society could not have filed a writ petition on behalf of ineligible members.

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It is his further contention that concession made

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by the State represented by the learned Advocate General does not take away the requirements of Section 20(2)(a-iv) of the Act, 1959. It is further submitted that this Court in

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Sri. B Ganganna 's case supra has held that writ petition is

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not maintainable after publication of calendar of events.

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Thus, the interim order could not have been passed and the writ petition could not have been allowed permitting the members of the respondent-co-operative society to vote in the election held on 18.02.2024.

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Sri Shashikiran Shetty, learned Advocate General appearing for the State would contend that the plea relating to COVID-19 pandemic related restriction was not raised before this Court in Sri. B Ganganna 's case supra, as such, the said judgment cannot be cited as a precedent. In Writ Petition No.3872/2024 a specific plea is raised in the backdrop of the restrictions imposed by the Government under the Standard Operating Procedure. Considering the extraordinary situation which prevented the society from holding the meeting in the normal course and which prevented the members from physically attending the meeting, this Court passed the order and the said order cannot be said to be contrary to the view taken in Sri. B Ganganna 's case supra as the plea based on COVID-19 pandemic was not raised and considered in Sri. B Ganganna 's case supra.

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Sri Jayakumar S Patil, learned Senior counsel

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appearing for respondents 5 and 7 would contend that the petitioner was aware of the interim order dated 09.02.2024 passed by this Court. Petitioner did not object to the members who did not attend the two annual general body meetings of the respondent-co-operative society when they voted in the election pursuant to the interim order and even when this case was posted on 19.02.2024 for hearing, the petitioner did not appear in the matter and objected to the interim order granted by this Court. It is only after losing the election, the petitioner is raising a dispute.

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It is also submitted by Sri Patil, that the order under review is not based on the concession, but order is passed on the premise that the requirement of Section 20(2)(a-iv) of the Act, 1959 cannot be insisted as five annual general body meetings to be held in accordance with the Act and Rules of the Karnataka Co-operative Societies were not held. Since five meetings as required under the Act, 1959 could not be held, there was no scope for application of Section 20(2)(a-iv) of the Act, 1959.

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12. This Court has considered the contentions raised

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at the bar.

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In Sri. B Ganganna 's case supra in paragraph

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44 of the said judgment, this Court has held that the right to question the election or the process of election post publication of calendar of events under Article 226 of the Constitution of India is not altogether barred. However, in exceptional cases, the Court can step in to pass appropriate orders to avoid miscarriage of justice in exercise of writ jurisdiction. Under these circumstances, the contention that the writ petition could not have been entertained in view of the judgment in Sri. B Ganganna 's case supra is not acceptable. The question is whether the exceptional case is made out to entertain a writ petition and to permit the members of the society who did not attend the minimum two annual general body meetings in the last five years prior to the election.

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It is an admitted factual position that in the years 2020, 2021 and 2022, annual general body meetings of the

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society were not held in the normal mode. It is an admitted position that COVID-19 pandemic related restrictions were in place and because of the standard operating procedure which was in force, the congregation of more than 500 persons in a place was prohibited. This being the position, the Court has taken note of the standard operating procedure prevailing in the years 2020, 2021 and 2022. While passing the interim order, a reference is made to the standard operating procedure. When meetings could not be held as required under the provisions of the Act, 1959 for the reasons beyond the control of the society and members, Section 20(2)(a-iv) of the Act, 1959 cannot be applied was the submission made by the petitioner in the writ petition as well as the respondents. Thus, it would mean that the basic requirement to invoke Section 20(2)(a-iv) of Act, 1959 was not available. That does not mean that the voting is permitted contrary to the provision. In fact, the conditions required for applying Section 20(2)(a-iv) of the Act, 1959 were not available as five annual general body meetings

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could not be held in the normal mode so as to accommodate

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all the members in the meeting.

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Learned Senior counsel for the petitioner has referred to the Judgments of the Apex Court in AUTOMOBILE PRODUCTS OF INDIA EMPLOYEES' UNION vs ASSOCIATION OF ENGINEERING WORKERS, BOMBAY AND OTHERS ((1990) 2 SCC 444) and ASSOCIATION OF ENGINEERING WORKERS vs DOCKYARD LABOUR UNION AND OTHERS (1995 Supp (4) SCC 544). In the aforementioned judgments, it has been held that there cannot be a concession contrary to the mandate of law.

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This Court has taken note of the fact that COVID-

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19 pandemic was an extraordinary unusual situation of such a nature which never occurred in the recent past. This prevented the co-operative society from holding the annual general body meetings accommodating physical presence of all the members.

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17. This being the position, this Court cannot accept

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the contention that the concession was made to waive off the requirements of law. If the facts are understood in the context where the meetings were not held as required under law, the Section 20(2)(a-iv) of the Act, 1959 did not apply as five annual general body meetings as required under law were not available for reckoning. The concession referred to in the impugned order is to be understood as explained above.

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As far as the contention that the co-operative society could not have filed the petition representing the cause of the members, this Court does not find any merit in the contention. It is not disputed that the board has taken a decision to file a petition on behalf of the members. The cooperative society in the context of the case represented the cause of its members in filing the petition and no fault can be found in such an action by the society.

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This being the position, the Court does not find any error in reviewing the order which is under review.

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Before parting, it is also relevant to note few

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factual positions which are not disputed by the learned Senior counsel for the petitioner.

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The petitioner did not move an application before this Court either any day after 09.02.2024 when this Court passed the interim order or after 18.02.2024 when the election took place pursuant to the interim order. It is submitted that the petitioner being aware of the interim order waited for the results to be announced after counting the votes cast by the members pursuant to the interim order. The petitioner could have filed an application to implead herself as a party to the proceeding any day before the disposal of the petition as the petitioner was aware of the interim order and pendency of the writ petition.

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Learned Senior counsel for the petitioner would submit that the petitioner had no cause of action to file the writ petition or to implead herself in the pending writ petition on 19.02.2024 as the petitioner was not an aggrieved party.

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It is relevant to note that the petitioner is raising

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a contention that ineligible members could not have voted in the election. Thus, the petitioner cannot take a stand that the petitioner was not an aggrieved person when the persons who have not attended atleast two annual general body meetings out of five annual general body meetings have voted in the election in the presence of the petitioner.

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Though the inaction on the part of the petitioner at the initial stage by itself is not a ground to dismiss the petition for the reasons already recorded, this Court is of the view that no ground is made out as required under Order XLVII of the Code of Civil Procedure to review the impugned order.

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Needless to say that in the order under review, this Court has reserved liberty to the persons aggrieved to raise an election dispute under Section 70(2)(c) of the Act, 1959. Despite this Court not entertaining the writ petition,

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the petitioner is at liberty to raise a dispute under Section 70(2)(c) of the Act, 1959.

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