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2014 Supreme(Kar) 225
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
B.S. PATIL, J.
Raviraja Hegde, S/o late P.Shekara Hegde & Ors. – Petitioner
Versus
State of Karnataka, Department of Cooperation, Rep. by Under Secretary - Respondent
W.P.No.6943/2014 (CSEL/M) C/W W.P.No.83/2014 (CSEL/M), W.P.No.10005/2014 (CSEL/M), W.P.Nos.10888/2014 & 12132-135/2014 (CSELE), W.P.Nos.10963/2014 & 12125-131/2014 (CSEL/M)
Decided on: 6.3.2014
Advocate Appeared
For the Petitioner: (By Sri K.Chandrashekar Achar, Adv., Sri S.K.Acharya, Adv., Sri Jayakumar S.Patil, Sr. Counsel for Sri Varun Jayakumar Patil, Adv.)
For the Respondent: (By Sri A.G.Shivanna, Addl. Adv. General & Sri Kiran Kumar.T.L., AGA for R1; Sri M.Keshava Reddy, Adv. for R2; Sri Abhinav.R., for M/s. Kumar & Kumar, Advs. for R3, Sri K.Chandrashekar Achar, Sri Kiran Kumar.T.L., AGA for R3, Sri Dayanand S. Patil, Adv.
The main legal point established in the judgment is the retrospective application of the amendments to the Karnataka Cooperative Societies Act, particularly regarding the term of office of the members of the Board.
Headnote:
Election - Cooperative Societies - Karnataka Cooperative Societies Act, 1959 - Section 28A(4), 28A(5), 39A(2), 39A(4), 39A(2), 28B, 29F(4), 98Q - The court discussed the amendments made to the Act, particularly the change in the term of office of the members of the Board from 'five cooperative years' to 'five years from the date of election'. The court also considered the effect of the 97th amendment to the Constitution of India and its impact on the term of office of the petitioners as members of the Managing Committee. The judgment highlighted the retrospective application of the amendments and the mandate of law and democratic member control introduced by the 97th amendment. The court's decision was influenced by the Division Bench's view that the amendment to Section 28A(4) has no retrospective application, and the term of such committees will come to an end upon the expiry of 'five cooperative years' i.e., on 31.03.2014.
Fact of the Case:
The petitioners challenged a communication from the State Government regarding the appointment of an Administrator and the term of the Board of the petitioner-Union. They sought a writ of mandamus directing the respondents to hold elections to the petitioner-Union before the expiry of the term.
Finding of the Court:
The court dismissed the writ petitions, considering the Division Bench's view on the retrospective application of the amendments and the ongoing election process for the secondary societies.
Issues: The main issue was the interpretation of the amended provisions of the Karnataka Cooperative Societies Act, particularly regarding the term of office of the members of the Board and the retrospective application of the amendments.
Ratio Decidendi: The court's decision was influenced by the Division Bench's view that the amendment to Section 28A(4) has no retrospective application, and the term of such committees will come to an end upon the expiry of 'five cooperative years' i.e., on 31.03.2014.
Final Decision: The writ petitions were dismissed.
1. In these writ petitions, common questions of law and facts arise for consideration. Hence, they are clubbed, heard together and are disposed of by this common order.
2. For the sake of convenience, the facts and grounds urged in W.P.No.10005/2014 are referred in this order.
3. 1st Petitioner Milk Producers Societies Union Limited and 1st other petitioners who are the elected Directors of the Petitioner-Union are challenging Annexure-H – communication dated 29.01.2014 of the State Government addressed to the Karnataka State Cooperative Election Commission informing that in respect of such of the Managing Committees of the Societies whose term comes to an end by 31.03.2014, elections could be held to elect the new Managing Committee after the expiry of the present term but, until the elections are held, an Administrator could be appointed to enable him to conduct the elections, and therefore, there was no need to resort to removal of difficulty clause as suggested by the Election Commission.
4. The second relief sought in the writ petition is, for a writ of mandamus directing the respondents to hold that the term of the Board of the 1st petitioner-Union would expire only on 30.06.2014 or in the alternative, direct the respondents to conduct election to the 1st petitioner-Union on or before 31.03.2014. An interim relief is sought to stay the communication – Annexure-H and to prevent the respondents 1st from appointing a Special Officer/Administrator to the petitioner-Union.
5. Undisputed facts are that election to the Managing Committee of the 1st petitioner-Union was required to be held on or before 31.03.2009. But, the State Government in exercise of its power under Section 121 of the Karnataka Cooperative Societies Act, 1959 (for short, ‘the Act’) issued a notification as per Annexure-N, postponing the elections taking note of the impending Lok Sabha Elections scheduled during April/May 2009. The Government Order stated that in exercise of the power under Section 39A(4) and 121 of the Act, and by relaxing the provisions contained in Sections 28A(4), 28A(5) and 28B(2), 29F(4) and 39A(2) of the Act, elections scheduled to the petitioner-Union and other similarly placed societies were postponed and rescheduled to be held in accordance with the time schedule notified in the very Government Order. As per the said time schedule, elections to the 1st petitioner-Union which is a federal society was held on 01.07.2009.
6. According to the petitioners, as per unamended provision contained under Section 28A(4) of the Act, the term of office of the members of the committee was five cooperative years and they shall be deemed to have vacated the office as such members of the committee on the date of completion of the said term, and if elections were to be held in the middle of the cooperative year, the remaining term should be considered as one cooperative year, thereby giving room to hold that the term of the committee of the petitioner would come to an end on 31.03.2014 and elections ought to have been held within 15 days from 31.03.2014. But, Section 28A(5) and Section 39A of the Act, having been amended by Act No.6 of 2010 with effect from 30.03.2010, as per the amended provisions, there is a conceptual change brought about.
7. It is urged that in terms of Section 28A(4) of the Act, the term of office of the members of the Board shall be five years ‘from the date of election’ and they shall be deemed to have vacated office as such members of the Board on the date of completion of the said term. According to the petitioners, the effect of the amendment made to Section 28A(4), Section 39A(2), Section 28A(5) and also the amendment made to the definition of the term ‘cooperative year’ in Section 2(d1) as per Act 3 of 2013 is that the term of office of the members of the Board shall be five years from the date of election and not from the date of expiry of the cooperative year.
8. In W.P.No.83/2014, election for the board of 2nd res
