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2019 Supreme(Kar) 1333
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
R. Devdas, J.
Basavaraj Kallappa Kugati & Anr. - Petitioner
Vs.
The Joint Registrar Of Co-Operative Societies, Belagavi Sub Division, Belagavi & Ors. - Respondent
Writ Petition Nos.101015-101016/2019 (CS-EL/M)
Decided On : 22-11-2019
For the Petitioner: Sri. F.V.Patil, Adv.
For the Respondent: Smt. K. Vidyavathi, Addl. Adv. Sri. Hemanthkumar L. Havaragi, Adv., Sri. Shivaklumar S. Badawadagi, Adv.
Headnote:
Constitution Of India,1950 - Article 226 - Rule 3, Karnataka Cooperative Societies Rule, 1960 - Election - Appointment as Chief Promoter granting permission - Quash - Petitioner was rejected by Deputy Registrar of Co-operative Societies same was challenged before this Court said writ petition was disposed of directing petitioner to prefer an before Joint Registrar of Co-operative Societies- On an appeal being preferred before Joint Registrar same was allowed while setting aside order of rejection passed by Deputy Registrar- Consequently Registering Authority was directed to reconsider application and complete registration formalities –Held Court have held that availability of alternative remedy is not an absolute bar for entertaining a writ petition- In case of Gupta Management of Hindu was that when an authority has acted wholly without jurisdiction High Court should not refuse to exercise its jurisdiction of Constitution on ground of existence of an alternative remedy- Similarly another- Indian Oil Corporation Ltd- reported - Apex Court has held that Rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion- It has also been held that writ jurisdiction can be exercised in at least three contingencies and one of them is where orders or proceedings are wholly without jurisdiction petition was raised on ground that all affected parties are not imp leaded in petition and therefore petition is not maintainable- In this regard it is suffice to notice that Hon’ble Apex Court in case and others state of Andhra Pradesh and Others reported in has held that even if some of affected parties have not been imp leaded and their interest are identical with those imp leaded and are sufficiently represented impalement of some would satisfy affected parties and non-impalement of some would not be fatal to maintainability of petition court by its interim order permitted Returning Officer to hold elections and elections having been results are required to be announced is an argument in desperation very that this Court while passing interim order directed Returning Officer to proceed with elections but specifically directed not to announce results it would only mean and signify that if this Court were to dismiss writ petition then membership persons would be validated and their right to vote would - On contrary if petition were to be allowed then votes cast by respondents and such other persons would become invalid and consequently fresh election is required – Petition allowed
ORDER :
The petitioners in these petitions are aggrieved by a portion of the impugned order dated 18.12.2018 at Annexure-E wherein it is directed that if respondents Nos.6 to 16 and other eligible farmers make an application for enrollment as new members to the 2nd respondent-Co-operative society, they should be enrolled as members and they should be included in the voters list and thereafter election was directed to be held. A subsequent order of even date passed by the 1st respondent acting as Election Officer, is also called in question, insofar as it relates to clause No.5 of the Order.
2. A brief background leading to the present writ petitions is required to be narrated. By a notification dated 15.03.2013 issued by the State Government, a new taluk known as Kittur came into existence after bifurcation of the earlier Bailhongal taluk. In the undivided Bailhongal taluk there was a Cooperative society known as Bailhongal Taluka Prathamika Sahakari Krishi Mattu Grameena Abhivrudhi Bank. After the establishment of the new taluk, the 1st petitioner herein moved an application before the Deputy Registrar of Co-operative Societies seeking permission to establish a new Co-operative Bank in the name of Kittur Taluka Prathamika Sahakari Krishi Mattu Grameena Abhivrudhi Bank. Under the provisions of the Karnataka Co-operative Societies Act (for short ‘the Act’), the primary co-operative Banks are called ‘Primary co-operative Agricultural Rural Development Bank’, which in common parlance are known as PCARD Banks. For the sake of convenience the 2nd respondent Bank shall be hereinafter referred to as ‘Kittur PCARD Bank’ or ‘Society’ while the Bank at Bailhongal shall be referred to as ‘Bailhongal PCARD Bank’. The application made by the 1st petitioner was rejected by the Deputy Registrar of Co-operative Societies. The same was challenged before this Court in W.P.No.101884/2016. The said writ petition was disposed of directing the 1st petitioner to prefer an appeal under Section 106 of the Act before the Joint Registrar of Co-operative Societies. On an appeal being preferred before the Joint Registrar, the same was allowed while setting aside the order of rejection passed by the Deputy Registrar. Consequently, the Registering Authority was directed to reconsider the application and complete the registration formalities.
3. In terms of Rule 3 of the Karnataka Cooperative Societies Rule, 1960 (for short ‘Rules’) the 1st petitioner was appointed as Chief Promoter granting permission to collect Shares from persons who are desirous of promoting the Bank. The law requires submission of application for registration along with the 1st list of promoters. The application filed by the petitioner was finally allowed and the 2nd respondent-Bank was registered on 14.08.2018, in terms of Section 7 of the Act. Section 17(1)(c) of the Act disqualifies a person who is already a member of a PCARD Bank from becoming a member of another PCARD Bank. The registering authority who issued the registration certificate has also approved the list of 325 persons as pre-registration members. The second proviso to sub-Section 4 of Section 28A requires that the first General Meeting of a society after registration shall be held within one month from the date of its registration to elect the first Board to manage the affairs of the society. Therefore, the petitioners requested the Joint Registrar to appoint a Returning Officer to complete the process of the first election by appointing Returning Officer to hold the Elections.
4. In the meanwhile, respondent Nos.6 to 16 challenged the registration of Kittur PCARD Bank by filing an appeal under Section 106 of the Act before the Joint Registrar. By order dated 18.12.2018, at Annexure-E, though the Appellate Authority did not interfere in the registration of the Society, however, directed the 2nd respondent Kittur PCARD Bank to consider the application of respondent Nos.6 to 16 along with all other eligible persons for enroll
