R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE7H DAY OF APRIL, 2020 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.31171/2019 (CS-EL/M) C/W WRIT PETITION NO.50873/2019 (CS-EL/M) IN WP No.31171/2019: BETWEEN: H. M. PRAKASH, S/O KUMARSWAMY, AGED ABOUT55YEARS DIRECTOR, TUMKUR MILK UNION, R/AT MADIHALLI, K.R. EXTENSION POST TIPUTUR TQ, TUMKUR TALUK & DISTRICT. ...PETITIONER (BY SRI DEVIPRASAD SHETTY, ADVOCATE) AND:
1. . THE STATE CO-OPERATIVE ELECTION AUTHORITY3D FLOOR, SHANTHI NAGAR, T.T.M.C. "A" BLOCK, SHANTHI NAGAR, BANGALORE27 REPRESENTED BY ITS SECRETARY22 . KARNATAKA CO OPERATIVE MILK PRODUCERS FEDERATION LTD., DR. MARIGOWDA ROAD, BANGALORE560029, BY ITS MANAGING DIRECTOR. 3 . RETURNING OFFICER APPOINTED FOR HOLDING THE ELECTIONS FOR THE POST OF PRESIDENT KARNATAKA CO-OPERATIVE MILK PRODUCERS FEDERATION LTD., DR. MARIGOWDA ROAD, BANGALORE560029. 4 . THE TUMKUR MILK UNION LTD, MALLASANDRA TUMKUR-572101. REPRESENTED BY ITS MANAGING DIRECTOR. …RESPONDENTS (BY SRI G. V. SHASHIKUMAR, ADVOCATE FOR R1; SRI PRASANNA B.R., ADVOCATE FOR R2; SRI M. SUBRAMANYA, ADDITIONAL ADVOCATE GENERAL A/W SRI K.R. NITYANANDA, HCGP FOR R3; SRI RAMACHANDRAN, ADVOCATE FOR SRI M.R.C. RAVI, ADVOCATE FOR R4) **** THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R2 TO PERMIT THE PETITIONER TO PARTICIPATE IN THE ELECTIONS TO BE HELD ON2907.2019 FOR THE POST OF PRESIDENT OF THE R2 FEDERATION BY ALLOWING TO CAST HIS VOTE AND TO DIRECT THE RESPONDENT NO.2 TO CONSIDER THE INTIMATION/REPRESENTATION AT ANNEXURE-F DATED197.2019. 3 IN WP No.50873/2019: BETWEEN: SRI M. K. PRAKASH S/O M.G KUMARASWAMY AGED ABOUT56YEARS MEMBER OF MANAGING COMMITTEE TUMKUR CO-OPERATIVE MILK PRODUCERS’ SOCIETIES UNION LIMITED AND MEMBER OF MANAGING COMMITTEE AS A DELEGATE TO KARNATAKA MILK FEDERATION R/O MADIHALLI VILLAGE, TIPTUR TALUK, TUMKUR DISTRICT577202. ...PETITIONER (BY SRI RAJAGOPAL M. R., ADVOCATE) AND:
1. . THE REGIONAL COMMISSIONER STATE CO OPERATIVE ELECTION COMMISSION2D FLOOR, BMTC BUILDING, K.H. ROAD, SHANTHINAGAR BENGALURU560027 2 . THE MANAGING DIRECTOR KARNATAKA COOPERATIVE MILK PRODUCERS FEDERATION LIMITED (KMF) KMF COMPLEX, DR. MH MARIGOWDA ROD, BENGALURU560029. 3 . THE TUMKUR CO-OPERATIVE MILK PRODUCERS SOCIETIES UNION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, N.H. NO.206, B.H. ROAD, MALLASANDRA TUMKUR572107 4 4 . MADIHALLI MILK PRODUCERS CO-OPERATIVE SOCIETY LTD., MADIHALLI TIPTUR TALUK, TUMKUR DISTRICT, BY ITS CHIEF EXECUIVE OFFICER57210. 5 . SRI. C.L. SHIVAKUMAR ASSISTANT COMMISSIONER AND RETURNING OFFICER, TUMKUR SUB DIVISION, TUMKUR57210. …RESPONDENTS (BY SRI G. V. SHASHIKUMAR, ADVOCATE FOR R1; SRI PRASANNA B.R., ADVOCATE FOR R2; SRI RAMACHANDRAN, ADVOCATE FOR SRI M.R.C. RAVI, ADVOCATE FOR R3 SRI S. BASAVARAJ, ADVOCATE FOR R4; SRI M. SUBRAMANYA, ADDITIONAL ADVOCATE GENERAL A/W SRI K.R. NITYANANDA, HCGP FOR R5; SRI JAI PRAKASH REDDY, ADV. FOR IMPLEADING APPLICANTS IN I.A. NO.1/2020) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION/LETTER DATED1111.2019 ISSUED BY R1 AS PER ANNEXURE-F AND THE
ORDERPASSED BY R-1 ON1111.2019 APPOINTING R-5 AS A RETURNING OFFICER, AS PER ANNEXURE-F1 AND THE MEETING NOTICE DATED1211.2019 ISSUED BY R-3 AS PER ANNEXURE-G ETC. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT OF
ORDERTHIS DAY, THE COURT MADE THE FOLLOWING:- 5
ORDERThe petitioner in Writ Petition No.31171/2019 has sought for the following reliefs: (a) Issue a writ in the nature of mandamus directing the respondent No.2 to permit the petitioner to participate in the elections to be held on 29.07.2019 for the post of president of the respondent No.2 federation by allowing to cast his vote. (b) Issue a writ in nature of mandamus directing the respondent No.2 to consider the intimation/representation at Annexure-F dated 19.07.2019 (c) Issue such other appropriate writ, order or direction as this Hon’ble Court deems fit under the circumstances of the case in the interest of justice and equity.
2. The petitioner in Writ Petition No.50873/2019 has sought for the following reliefs:
6. b) Issue a writ in the nature of certiorari or any other writ to quash the communication/letter dated 11-11-2019 issued by respondent No.1 in No.CHUNAVANE/VIVA/74/2018-19 AS PER Annexure-F and the order passed by respondent No.1 on 11.11.2019 in No.CHUNAVANE/VIVA/74/2018-19, appointing respondent No.5 as a Returning Officer, as per Annexure-F1 and the Meeting Notice dated 12.11.2019 issued by respondent No.3 in No.THU.SA.HA.O/ADALITHA/43.8/2019-20 as per Annexure-G; c) Declare that the communication/letter dated 11.11.2019 issued by respondent No.1 in No.CHUNAVANE/VIVA/74/2018-19 as per Annexure-F interse between respondent Nos.1 and 2 is ultra vires as respondent No.1 lacks authority to issue such instruction in view of the clear provision provided under Section 28-A(4-B) of the Karnataka Co-operative Societies Act, 1959. d) Pass any appropriate writ, order or direction as this Hon’ble Court deem it fit and proper in the facts and circumstances of the case and allow this writ petition with costs, in the ends of justice and equity. 7 I. BRIEF FACTS OF THE CASE3 For the sake of convenience, the parties are referred to as per their ranking in Writ Petition No.50873/2019. The annexures are also referred to as in Writ Petition No.50873/2019.
4. The petitioner in these writ petitions is common. It is the case of the petitioner that he is the primary member of Respondent No.4 - Madihalli Milk Producers Co- operative Society Limited, Madihalli, Tiptur Taluk, Tumkur District and he is elected as a Member of the Managing Committee of the said primary society for a term of five years from 2018 to 2023. It is contended that there was an election to elect the members of the Managing Committee to the Respondent No.3 – District Milk Union, which is the secondary society in the hierarchy of the Milk Producers Co-operative Societies in the State. The 8 hierarchy of the Milk Producers Societies is in three tier system and at the highest level there is an Apex Society and that is known as Karnataka Milk Federation (‘KMF’ for short) and at the rural level, the societies called Primary Milk Producers Co-operative Societies. In between the primary societies and the Apex Society, the District Milk Unions are functioning, which are known as the District Co- operative Milk Producers’ Societies Union Limited. It is further contended that the petitioner after elected as a member of the Managing Committee to the Respondent No.4 – Society was also contested for the elections to the Respondent No.3 – ‘District Milk Union from Tiptur constituency and has successfully came through and as such he is the sitting member of the Managing Committee to the respondent No.3 - District Milk Union. The election to the Respondent No.3 - District Milk Union was held on 30.10.2018. 9
5. It is further contended that in view of the provisions of Section 21(2) of the Karnataka Co-operative Societies Act, 1959 (‘the Act’ for short) the Board of a Co- operative Society which is a member of another Co- operative Society may appoint one of the members of the Board to vote on its behalf in the affairs of that other society. The proviso to the said provision further makes it very clear that where a new Board has been elected to a co-operative society, such newly elected board shall send a delegate or nominee to any other co-operative society where it is a member.
6. Under the Scheme of the composition of the Milk Producers Co-operative Societies in the State, there are group of primary societies in a Taluk and they are the members to the District Milk Union and constituencies have been specified in each taluk enabling to elect to represent those primary societies in the taluk with District Milk Union. It is further contended that the secondary societies are 10 required to send their nominee or delegate to the Apex Society among the members of the Managing Committee of the District Milk Union, who is known as delegate to the Apex Society to represent the concerned District Milk Union.
7. It is further contended that there was a meeting convened by the Respondent No.3 - District Milk Union on 12.7.2019 and one of the subjects as specified in the said meeting is the subject in respect of deputing or sending a delegate to represent the District Milk Union with the Apex Society i.e., KMF. Accordingly, the resolution came to be passed to send the petitioner as a delegate to represent the respondent No.3 – District Milk Union with respondent No.2 - Apex Body for the years 2019-2024 for a period of 5 years.
8. It is further contended that after completion of the process of delegation, the respondent No.3 – District Milk Union communicated the same to the respondent No.2 – 11 KMF on 19.7.2019. In the light of the resolution passed by the Milk Union, certain other formalities are required to be done for the purpose of completing the process of delegation and that has also been completed by submitting necessary documents along with the resolution of the secondary society.
9. When things stood thus, an election was held to elect the Chairman/President to the Respondent No.2 – KMF on 31.8.2019. In this regard, the minutes were recorded and the Chairman/President was duly elected and a resolution is passed to that effect, which is accompanied with the list of all the delegates representing various secondary societies of three respective districts with respondent No.2 – KMF, which is inclusive of Tumkur district. In the Proceedings of the Meeting of the Elections as per Annexure-C, the name of the petitioner is shown at Serial No.17 against the Tumkur district. Respondent No.3 - District Milk Union has notified the list of members of its 12 Managing Committee as per Annexure-D, wherein the name of the petitioner – M.K. Ramesh is at serial No.2. Therefore, the petitioner is not only the member of the Managing Committee of the respondent No.3 but also delegate to Respondent No.2 – KMF.
10. It is further contended that in view of the controversies arisen because of deputing the petitioner as a delegate to the 2nd respondent – KMF belatedly, in the election convened on 31.8.2019 to elect the President of the Karnataka Milk Federation, the petitioner was not included in the voters’ list. The reason for such non- inclusion according to the respondent No.2 – KMF is that the name of the petitioner was sponsored as a delegate of the Respondent No.3 belatedly and that it has not reached the respondent No.2 – KMF within the time stipulated. Therefore, the petitioner was constrained to file Writ Petition No.31171/2019 before this Court and this Court granted interim order directing the respondents therein to 13 permit the petitioner to participate in the election to be held on 31.8.2019 (if election were to be held) for the post of President of the respondent – KMF by permitting the petitioner to cast his vote and said vote shall be kept in a sealed cover and shall not be opened without express permission from this Court.
11. It is further contended that when the matter stood thus, surprisingly the 1st respondent – Regional Commissioner addressed a letter dated 11.11.2019 to the respondent No.2 – KMF, wherein the meeting of the members of the Managing Committee to respondent NO.3 was scheduled by the respondent No.1 – Regional Commissioner himself on 20.11.2019 and the said meeting is specifically convened for the purpose of nominating or deputing a new delegate. In furtherance of the said communication dated 11.11.2019, the 1st respondent has also passed one more order on the very same day appointing the 5th respondent as a Returning Officer. 14
12. It is further contended that during the year 2014, the Respondent No.3 – Milk Union had sent one Sri Chandrashekar as its delegate to the respondent No.2 – KMF and the Respondent No.3 has passed the resolution to that effect on 9.7.2014. It is also the subject on par with the resolution in which the petitioner was sent as delegate.
13. It is further contended that the Regional Commissioner has referred to certain irregularities in the meeting convened by the respondent No.3 - District Milk Union on 12.7.2019 and in the said meeting, in the minutes the members who were present in the said meeting alone have signed, but no signature was available in so far as the resolution passed in the said meeting electing or selecting the petitioner as a delegate to the Respondent NO.2 - Apex society from the respondent No.3 - Milk Union. In addition to that, another reason was indicated in the impugned letter that the official nominees who were sent to 15 the concerned District Milk Union have participated in the meeting though they have no right to participate in such meeting and based on these defects, respondent No.1 – Regional Commissioner has found fault with the decision taken by Respondent NO.3 – Milk Union in their meeting dated 12.7.2019. Upon noticing the deficiencies or defects in the meeting dated 12.7.2019, respondent No.1 has proposed to conduct a meeting by respondent No.3 – District Milk Union and further instructed the respondent No.3 – Milk Union not to alter or revise the date of meeting which is specified by the respondent No.1 on 20.11.2019. Though there is no election process is permitted, certain events have been referred to in the said letter, but in fact, selecting one of the members of the Managing Committee of respondent No.3 – District Milk Union as a delegate to represent the said Milk Union with the Apex Body, is only by way of the deliberation among the members of the Managing Committee in the meeting, but it is not an 16 election at all. Question of conducting election is nowhere provided in the law for the purpose of selecting a delegate to depute such delegate as a representative to the Apex society from the secondary society. On the basis of the said letter, the respondent NO.3 – District Milk Union has convened the meeting on 20.11.2019 by communicating the meeting notices to the members of the Managing Committee on 12.11.2019. Hence, the present writ petitions are filed for the relief sought for. II OBJECTIONS FILED BY THE STATE GOVERNMENT ON BEHALF OF RESPONDENT NO.5 IN W.P. NO.50873/2019 14. The State Government filed objections contending that the very writ petition filed by the petitioner for the relief sought for is not maintainable as the election to the Board of the 2nd respondent – KMF was conducted on 8.7.2019 and 12 Directors were unanimously elected and the Returning Officer issued Form No.XIX as contemplated under Rule 14-G(2) of the Rules and the petitioner is not 17 declared as Director of the Respondent No.2 - KMF as required under Rules 13-D(2) and 14-G(2) of the Rules. It is further contended that in view of the definitions of the ‘Delegate’ and ‘Director’ as contemplated under the provisions of Sections 2(e-1-a) and 2(e-2-1) of the Act respectively, the petitioner is not duly elected Director of the 2nd respondent – KMF as required under the proviso to Section 29(E) of the Act. Merely because the 3rd respondent – Milk Union delegated the name of the petitioner to the 2nd respondent - KMF, the petitioner cannot automatically become Director of the 2nd respondent – KMF unless he is duly elected in accordance with law and the election is mandatory to become the Director of the 2nd respondent – KMF. Therefore, sought to dismiss the writ petition. III. OBJECTIONS FILED BY THE1T RESPONDENT15 The 1st respondent – Regional Commissioner filed statement of objections and contended that the election for 18 the Board of the Respondent No.2 was conducted on 8.7.2019 and 12 Directors were unanimously elected on that day. The Returning Officer has issued Form No.XIX as per Rule 14-G(2) of the Karnataka Co-operative Societies Rules, 1960 (‘the Rules’ for short). It is further contended that the election to the Board was held on 8.7.2019, but the 3rd respondent passed the resolution on 12.7.2019 delegating the petitioner to the 2nd respondent - KMF. It is further contended that the provisions of Section 2(e-1-a) of the Act defines the ‘Delegate’ and it means a member of the Board of a Co-operative society appointed by the Board to represent that Co-operative Society in other Co- operative Societies. The provisions of Section 2(e-2-1) of the Act defines the ‘Director’ and it means a member of the board duly elected or nominated or co-opted in accordance with the Act, the rule and the bye-laws made under the Act. In view of the above, the petitioner is not duly elected Director of the 2nd respondent – KMF as required under the 19 proviso to Section 29(E) of the Act. It is further contended that the petitioner participated in the election to the office bearers of the 2nd respondent – KMF only on the basis of the interim order granted by this Court in Writ Petition No.31171/2019 and the same is pending consideration. Therefore, the petitioner is not entitled to any relief before this Court.
16. It is further contended that in view of the communication dated 5.10.2019 issued by the 2nd respondent to the 1st respondent, who is appointed as the Election Officer to conduct elections for the Respondent No.2 by the Co-operative Election Authority as per Rule 2(i-
1) and Rule 13-BB of the Rules, the 1st respondent has initiated the proceedings to conduct elections to the Respondent No.2 and appointed the Respondent No.4 herein as Returning Officer as per Rule 13-E of the Rules. 20
17. It is further contended that when the 1st respondent was under the process of taking steps as per Rule 13-D(3) of the Rules, it was noticed that the selection process of the delegate has not been conducted through a process of elections, which is the only fair and transparent process for selection of a delegate, providing an equal opportunity to all the members and also providing for a fair process for selection in case of more than one aspiring candidate. Absence of such a transparent election process may lead to disputes of various kinds as a result of denial of principles of democracy and natural justice. It is further contended that the procedure for conducting elections as prescribed in Rule 13-D is adhered to during the selection of the delegates as well, in view of the fact that as per Section 29-E of the Act, the casual vacancy has to be filled through an election by the Co-operative Election Commission and the selection of delegate has to be done through the election process. Therefore, the delegation of the petitioner 21 having not been done through the election process, the 1st respondent has passed an order on 11.11.2019 for conducting electron as prescribed and the same is in accordance with the Act and the Rules.
18. It is further contended that the election process of Board of Directors of K.M.F. (an apex Society) is a two-step process viz., firstly at the secondary level co-operative society for election of an office bearer (viz., delegate) as per Rule 14-AG of the Rules and secondly at the level of KMF (Apex society) for elections among the selected delegates for election of the members of the Board by the general body as per Rule 13 of the Rules. Therefore, the 1st respondent, on finding that the first step process has not been conducted as per a fair election process, had given instructions by the impugned letter dated 11.11.2019 for conducting election as prescribed and the same is in accordance with the Act and the Rules and sought to dismiss the writ petition. 22
19. I have heard the learned counsel for the parties to the lis. IV. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PETITIONER20 Sri M.R. Rajagopal, learned counsel for the petitioner contended that the power to delegate one of the members of the Society to the Apex Society or Parliamentary society is the exclusive domain of the Management. The petitioner is the member of the 3rd respondent secondary society and he has been delegated to the Apex Society. He would further contend that under the provisions of Section 21(3) of the Act, a member once nominated by the board of a Co-operative Society under clause (a) of sub-section (2) to vote on its behalf in any meeting of any other co-operative Society shall not be changed except by a resolution passed with substantial reasons in a Board meeting by a two-third majority of the members present and voting in such meeting. However a 23 Co-operative Society shall not nominate or appoint any member of the board to vote on behalf of it in more than two co-operative societies. He would further contend that the 3rd respondent has delegated the petitioner to the 2nd respondent – Apex Society under Section 21 of the Act and the direction of the 1st respondent – Regional Commissioner to annul the delegation of the petitioner is not permissible. The Respondent No.2 - Apex Society filed memo that it had no objection for the delegation of the petitioner from the respondent No.3 – Milk Union. He would further contend that under the provisions of Section 28-A of the Act, the Management of a co-operative society shall vest in a board constituted in accordance with the Act, the rules and the bye-laws of such society. The board shall exercise such powers, discharge such duties and perform such functions as may be conferred or imposed upon it by the Act, the rules and the bye-laws. Therefore, the 1st respondent has no jurisdiction to issue the impugned Annexure-F. 24 21 . He would further contend that the 1st respondent - Regional Commissioner has referred to only certain irregularities in the meeting convened by the respondent No.3 - District Milk Union on 12.7.2019 viz., in the minutes of the Meeting, the members who were present in the said meeting have signed, but no signature was available in so far as the alleged resolution passed in the said meeting is concerned. In addition to that, another reason is indicated in the impugned letter that the official nominees who were sent to the concerned District Milk Union have participated in the meeting though they have no right to participate in such meeting.
22. He would further contend that Annexure-A resolution of the 3rd respondent dated 12.7.2019 clearly depicts that totally 15 members were present and one member absent. He would further contend that under the provisions of Section 39-A of the Act, every general election of the members of the board and election of the office 25 bearers of a co-operative society including any casual vacancy to the extent applicable shall be held under the superintendence of Co-operative Election Authority. The general elections of the members of the boards of the co- operative societies shall be held in four stages i.e., (a) the elections in respect of primary co-operative societies shall be held in the first stage; (b) the elections in respect of secondary Co-operative Societies shall be held in the second stage; (c) the election in respect of federal Co- operative Societies shall be held in the third stage; and (d) the elections in respect of Apex Co-operative Societies shall be held in the fourth stage. He also brought to the notice of the Court the provisions of Section 39-AA of the Act relating to Co-operative Election Commission. In the circumstances, he sought to allow the writ petition.
23. In support of his contentions, learned counsel for the petitioner relied upon the judgment in the case of P. Gadeppa and others vs. The State of Karnataka, rep. by its 26 Secretary and others reported in ILR2012Kar. 1973 (paragraph-13). V. ARGUMENTS ADVANCED BY SRI S. BASAVARAJ, LEARNED COUNSEL FOR RESPONDENT NO.4 – MADIHALLI MILK PRODUCERS CO-OPERATIVE SOCIETY IN W.P. No.50873/2019 24. Sri S. Basavaraj, learned counsel for the respondent No.4 – primary society, which sent the petitioner to the Respondent No.3 – Milk Union sought to justify the resolution passed by the 3rd respondent dated 12.7.2019 and contended that in view of the provisions of Section 126 of the Act, no act of co-operative society or any board or of any officer shall be deemed to be invalid by reason only of the existence of any defect in the constitution of the society or the board or in the appointment or election of an officer or on the ground that such officer was disqualified for his appointment. 27
25. In support of his contentions, learned counsel relied upon the dictum of the Hon’ble Supreme Court in the case of H.K. Srinivasan and others vs. State of Karnataka and others reported in (1987)1 SCC658 VI. ARGUMENTS ADVANCED BY SRI PRASANNA B.R., LEARNED COUNSEL FOR RESPONDNET NO.2 - KMF26 Sri Prasanna B.R., learned counsel for the respondent No.2 – Karnataka Milk Federation sought to justify the resolution passed by the 3rd respondent dated 12.7.2019. VII. ARGUMENTS ADVANCED BY LEARNED COUSNEL FOR THE RESPONDENT NO.3
27. Sri Ramachandran, learned counsel appearing on behalf of Sri M.R.C. Ravi, learned counsel for the Respondent No.3 – Society has filed copy of the attendance register duly signed by the members of the Society along with certain other documents. The same are placed on record. Learned counsel sought to justify the resolution passed by the 3rd respondent dated 12.7.2019. 28 VIII. ARGUMENTS ADVANCED BY SRI JAI PRAKASH REDDY, LEAREND COUSNEL FOR THE IMPLEADINMG APPLICANT28 Sri Jai Prakash Reddy, learned counsel for the impleading applicant supported the arguments of the learned counsel for the 3rd respondent. IX. ARGUMENTS ADVANCED BY SRI M. SUBRAMANYA, LEARNED ADDITIONAL ADVCOATE GENERAL A/W K.R. NITYANANDA ON BEHALF OF THE STATE29 Sri M. Subramanya learned AAG while reiterating the averments made in the statement of objections, contended that the very writ petitions filed by the petitioner for the relief sought for, are not maintainable as the election to the Board of Respondent No.2 – KMF was conducted on 8.7.2019 and 12 Directors were unanimously elected and the Returning Officer issued Form No.XIX as contemplated under Rule 14-G(2) of the Rules and the petitioner is not declared as Director of the Respondent No.2 – KMF as required under Rules 13-D(2) and 14-G(2) of the Rules. He further contended that in view of the 29 definition of the ‘Delegate’ and ‘Director’ as contemplated under the provisions of Sections 2(e-1-a) and 2(e-2-1) of the Act respectively, the petitioner is not duly elected Director of the 2nd respondent – KMF as required under the proviso to Section 29(E) of the Act. Merely because the 3rd respondent – Milk Union delegated the name of the petitioner to the 2nd respondent - KMF, the petitioner cannot automatically become Director of the 2nd respondent – KMF unless he is duly elected in accordance with law and the election is mandatory to become the Director of the 2nd respondent – KMF. Therefore, he sought to dismiss these writ petitions. X. ARGUMENTS ADVANCED BY SRI SHASHIKUMAR, LEARNED COUNSEL FOR THE RESPONDENT NO.1 IN W.P. No.50873/2019 30. Per contra, Sri Shashikumar, learned counsel for the respondent No.1 reiterating the averments made in the statement of objections contended that though the election for the Board of the Respondent No.2 – Karnataka Milk 30 Federation was conducted on 8.7.2019 as per Annexure-R1, the resolution delegating the petitioner to the Apex society was passed only on 12.7.2019. Thus, by that time, the election already over. The delegation of the petitioner by the Respondent No.3 to the Respondent No.2 without election, cannot be accepted. He also contended that in view of the definitions of ‘Delegate’, ‘Director’ and ‘Member’ as per the provisions of Section 2(e-1-a), Section 2(e-2-1) and Section 2(f) of the Act respectively, election is mandatory. He would further contend that the 1st proviso to Section 29-E of the Act prescribes that the co-operative election commission shall conduct the election to fill up any vacancy in the office of the Director of the Board if the remaining term of office of the board is more than half of its original term. He would further contend that Section 21 of the Act relates to manner of exercising vote and sub- section (3) of Section 21 of the Act prescribes that a member once nominated by the board of a Co-operative 31 Society under clause (a) of sub-section (2) to vote on its behalf in any meeting of any other co-operative Society shall not be changed except by a resolution passed with substantial reasons in a Board meeting by a two-third majority of the members present and voting in such meeting. However a Co-operative Society shall not nominate or appoint any member of the board to vote on behalf of it in more than two co-operative societies.
31. He would further contend that in the proceedings of the Respondent No.2 – Karnataka Milk Federation vide Annexure-C dated 31.8.2019, the petitioner’s name is shown at serial No.17 and in the said proceedings, the order passed by this Court in Writ Petition No.31171/2019 dated 28.8.2019 permitting the petitioner to participate in the election is referred to. Admittedly, the election for the Board of the Respondent No.2 was conducted and 12 Directors were unanimously elected as per Annexcure-R1 dated 8.7.2019 and the same was not challenged by any 32 one including the present petitioner. The provisions of Rules 13-BB, 13-C and 14-B(2) and (3) of the Karnataka Co-operative Societies Rules (‘Rules’ for short) contemplate for conducting of the Election. He would further contend that the provisions of Section 28-A of the Act specifies that the management of co-operative societies vest in the Board. Sub-section (6) of Section 28-A of the Rules stipulates that the members of the board shall elect from among themselves the office bearers of the co-operative society and the election of the office bearers shall be by secret ballot. He would further contend that the petitioner in Writ Petition No.31171/2019 at paragraph-2 it is specifically stated that “election to the respondent NO.2 - KMF was notified. That all the Milk Unions have to sent their delegates to contest in the election to the Board of the Respondent No.2. That total 14 Directors have to be selected and 12 Directors have been elected unanimously on 8.7.2019. 33
32. He also brought to the notice of the Court the Bye-law Nos.2.7, 2.16, 20.0 – 20.1.1, 22.1 of the KMF bye- laws, which clearly depict that selection of the Director only through the process of election. He further contended that the provisions of Section 126 of the Act are not applicable to Section 21(2)(a) of the Act. In the circumstances stated supra. Hence, he sought to dismiss the writ petition.
33. In support of his contentions, learned counsel for Respondent No.1 relied upon the following judgments:
1. P. Channaveerappa Gowda vs. Mysore Co-operative Appellate Tribunal {(1968)2 Mys.LJ528.. with regard to the provisions of Section 21(2) of the Act.
2. L. Krishnegowda and others vs. State of Karnataka and others {1992(2) Kar.LJ.404} 34 XI. POINT FOR CONSIDERATION34 In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in these writ petitions is: “Whether the Election is mandatory to become Director of the 2nd respondent – KMF inspite of the Resolution dated 12.7.2019 passed by the Respondent No.3 delegating the name of the petitioner to the 2nd respondent – KMF, in the facts and circumstances of the case ?.” X. CONSIDERATION35 I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
36. Under the provisions of the Act, the State Government made hierarchy of Milk Producers Co-operative Societies in three tier system viz., 35 i) Primary Milk Producers Co-operative Societies ii) District Milk Unions iii) Apex Society – Karnataka Milk Federation.
37. It is the case of the petitioner that he is a primary member of the 4th respondent – Co-operative Society and he was elected as a member of the Managing Committee of the respondent No.4 for a term of five years from 2018 to 2023. Thereafter, he was elected to the Managing Committee of the 3rd respondent – District Milk Union, which is a secondary Society. The 3rd respondent by a resolution dated 12.7.2019 delegated the name of the petitioner to the Apex Society – KMF for a period of five years from 2019 to 2024. Therefore, there was no need of election to become the Director of the 2nd respondent – KMF. It is the specific case of the 1st respondent – Regional Commissioner, State Co-operative Election Commission that merely because the 3rd respondent – Milk Union delegated the name of the petitioner to the 2nd respondent - Apex 36 Society, the petitioner cannot automatically become Director of the 2nd respondent – KMF unless he is duly elected in accordance with law and the election is mandatory to become the Director of the 2nd respondent - Apex Body.
38. In view of the aforesaid contentions, it is relevant to consider the definitions of ‘Delegate’, ‘Director’ and Member’ as per the Act. Section 2(e-1-a) of the Act defines the ‘Delegate’ and it means a member of the Board of a Co-operative society appointed by the Board to represent that Co-operative Society in other Co-operative Societies. Section 2(e-2-1) of the Act defines the ‘Director’ and it means a member of the board duly elected or nominated or co-opted in accordance with the Act, the rule and the bye- laws made under the Act. 37 Section 2(f) of the Act defines ‘Member’ and it means a person joining in the application for the registration of a co-operative society and a person admitted to membership after such registration in accordance with the Act, the rules and the bye-laws and includes a nominal and an associate member. 38-A. A combined reading of the said provisions, it is clear that member delegated by the board of a Co-operative Society to represent that Society in other Co-operative Society and the member of the board duly elected in accordance with the Act, the rule and the bye-laws as director and a person joining the application for the registration of a Co-operative Society and admitted to membership in accordance with Act, Rules and bye-laws as member.
39. The provisions of Section 21 of Chapter III of the Act prescribes manner of exercising vote, which reads as under:
38. 21. Manner of exercising vote.- (1) Every member, every representative, every delegate and every nominee shall exercise his vote in person and not by proxy at a general meeting or an election of the members of the board of a Co- operative Society. (2) Notwithstanding anything contained in sub- section (1),-- (a) the board of a Co-operative Society which is a member of another co- operative society may appoint one of the members of the board to vote on its behalf in the affairs of that other society: Provided that where a new board has been elected to a co-operative society, such newly elected board shall send a delegate or nominee to any other co- operative society where it is a member. (b) where the Life Insurance Corporation of India, the State Warehousing Corporation or such other institutions approved by the State Government or a market committee or a local authority or a firm or a self-help group, a company or any other body corporate 39 constituted under any law for the time being in force is a member of a co-operative society, a person nominated by such institution, market committee or local authority or a firm or a self- help group, a company or any other body corporate constituted under any law for the time being in force, may vote on its behalf in the general meeting or the election of the members of the board of the society. (3) A member once nominated by the board of a co- operative society under clause (a) of sub-section (2) to vote on its behalf in any meeting of any other co- operative society shall not be changed except by a resolution passed with substantial reasons in a board meeting by a two-third majority of the members present and voting in such meeting. However a Co- operative Society shall not nominate or appoint any member of the board to vote on behalf of it in more than two co-operative societies. Explanation:- For the purposes of Section 20 and this section and wherever else it occurs, the word ‘delegate’ means a member of a co-operative society to represent that society in other co-operative societies. 40
40. A careful reading of the said provision makes it clear that every member, every representative, every delegate and every nominee shall exercise his vote in person and not by proxy at a general meeting or an election of the members of the Board of a Co-operative Society. Sub-Section (2) of Section 21 of the Act prescribes that notwithstanding anything contained in sub-Section (1), the board of a Co-operative Society which is a member of another co-operative society may appoint one of the members of the board to vote on its behalf in the affairs of that other society provided that where a new board has been elected to a co-operative society, such newly elected board shall send a delegate or nominee to any other co- operative society where it is a member. Sub-section (3) of Section 21 prescribes that a member once nominated by the board of a co-operative society under clause (a) of sub- section (2) to vote on its behalf in any meeting of any other co-operative society shall not be changed except by a 41 resolution passed with substantial reasons in a board meeting by a two-third majority of the members present and voting in such meeting. However a Co-operative Society shall not nominate or appoint any member of the board to vote on behalf of it in more than two co-operative societies. Explanation to Section 21 of the Act prescribes that for the purposes of Sections 20 and 21 and wherever else it occurs, the word ‘delegate’ means a member of a co- operative society to represent that society in other co- operative societies.
41. Chapter V-A of the Act deals with election of members of the Board of co-operative societies. Section 39-A of the Act refers to conduct of elections, which reads as under:
39. - Conduct of elections.- (1) Every general election of the members of the board and election of the office-bearers of a cooperative society including any casual vacancy to the extent applicable shall be 42 held under the superintendence of Co-operative Election Authority. (2) The general elections of the members of the boards of the cooperative societies shall be held in four stages as under,- (a) the elections in respect of primary cooperative societies shall be held in the first stage; (b) the elections in respect of secondary Co- operative Societies shall be held in the second stage; (c) the elections in respect of federal Co-operative Societies shall be held in the third stage; (d) the elections in respect of Apex Co-operative Societies shall be held in the fourth stage. Provided that the cooperative election commission may start the preparatory work for the preparation of the electoral rolls for and the conduct of the elections during the last six months prior to the expiry of the term of office of the board of a cooperative society. 43
42. A plain reading of the said provision makes it clear that every general election of the members of the Board and election of the office-bearers of a co-operative society including any casual vacancy to the extent applicable shall be held under the superintendence of a Co- operative Election Authority. Sub-section (2) of Section 39-A contemplates that the general elections of the members of the boards of the co-operative societies shall be held in four stages – (a) the elections in respect of primary co-operative societies shall be held in the first stage; (b) the elections in respect of secondary Co- operative societies shall be held in the second stage; (c) the elections in respect of federal Co-operative Societies shall be held in the third stage; and (d) the elections in respect of Apex Co-operative Societies shall be held in the fourth stage; 44 provided that the co-operative election commission may start the preparatory work for the preparation of the electoral rolls for and the conduct of the elections during the last six months prior to the expiry of the term of office of the board of a co- operative society. The said provision makes it clear that the elections to every Society i.e., primary, secondary, Federal as well as Apex Co-operative societies shall be conducted. Therefore, the contention of the learned counsel for the petitioner that the 3rd respondent delegated the name of the petitioner to the 2nd respondent – Apex Society by a resolution dated 12.7.2019 and therefore, there is no need to conduct election to become the Director of the 2nd respondent – Apex Society, cannot be accepted.
43. The provisions of sub-section (2) of Section 39- AA of the Act prescribes that the superintendence, direction and control of the preparation of the electoral rolls for all 45 elections to the Co-operative Societies in the State shall be vested with the Co-operative Election Authority.
44. At this stage, it is relevant to state that admittedly, the election to the Board of the 2nd respondent – KMF came to be held on 8.7.2019 as can be seen from Annexure – R1 issued by the Returning Officer and the same is produced along with the statement of objections filed by the Respondent No.1. The resolution passed by the 3rd respondent on 12.7.2019 delegating the name of the petitioner to the 2nd respondent – Apex Society. The interim order passed by this Court in Writ Petition No.31171/2019 only on 28.8.2019 permitting the petitioner to participate in the election to be held on 31.8.2019. The election to elect the President/Chairman of the 2nd respondent – KMF was held on 31.8.2019 and the list of delegates representing secondary Societies of various districts including Tumkur district is shown at Annexure-C. In the Proceedings of the 2nd respondent – KMF vide 46 Annexure-C, the name of the petitioner is shown at serial No.17 against the Tumkur district as per the interim order dated 28.8.2019 passed by this Court in Writ Petition No.31171/2019. Admittedly, the election held to the Board of Directors of the 2nd respondent – KMF on 8.7.2019, has not at all been challenged by anyone including the present petitioner. The very petitioner in Writ Petition No.31171/2019 at paragraph-2 has stated that “ That elections to the respondent no.2 – KMF was notified. That all the Milk Unions have to send their delegations to contest in the elections to the board of respondent no.2. That total of 14 directors have to be elected. That total of 12 directors have been elected unanimously on 8.7.2019”.
45. It is also relevant to consider the provisions of Rule 13-BB of the Rules relating to appointment of Election Officer. As per the said provisions, the Co-operative Election Authority shall appoint an Election Officer for each District/Region/State as the case may be, for a specified 47 period and the Election Officer shall ordinarily be from the Revenue Department for Federal and Apex Co-operative Societies and from the Co-operative Department for other societies.
46. The provisions of Rule 13-C of the Rules relates to conduct of general elections to Board and it prescribes that the Government may advise the Election Authority on the suitability for conducting elections as per sub-section (2) of Section 39-A of the Act for administrative reasons to be recorded in writing.
47. The provisions of Rule 14-G (2) of the Rules contemplates that if the number of such candidates in any constituency is equal to the number of seats to be filled from that area or constituency, the Returning Officer shall forthwith declare all such candidates to be duly elected to fill these seats in Form XIX as may be appropriate. Rule 14-G(3) of the Rules contemplates that if the number of 48 such candidates is less than the number of seats to be filled from that constituency or place, the Returning Officer shall declare all such candidates to be duly elected after withdrawal is over in Form XIX as may be appropriate and the Election Officer shall, with the approval of the Co- operative Election Authority, call upon the society to elect a person or persons to fill the remaining seat or seats. After such election to fill the casual vacancy is over, the Returning Officer shall forthwith declare all such candidates duly elected to fill those casual vacancy seats in Form XX.
48. By conjoint reading of the provisions of Section 39-A of the Act and Rules 13-BB, Rule 13-C and 14-G (1) and (2) of the Rules, it clearly depicts that the post of Director of the 2nd respondent – KMF is to be filled only by election. By mere act of the 3rd respondent delegating/nominating the name of the petitioner to the 2nd respondent – KMF, he can only represent on behalf of the 3rd respondent as a delegate and he cannot automatically 49 become Director unless election is conducted in accordance with the provisions stated supra. Therefore, the contention of the learned counsel for the petitioner that mere delegation of the name of the petitioner by majority of the members of the 3rd respondent to the 2nd respondent – Apex Society, he will automatically become Director, cannot be accepted and the post of Director of the 2nd respondent is to be filled only through the process of election.
49. Though in the impugned communication dated 11.11.2019 (Annexure-F), the 1st respondent pointed out certain irregularities in the resolution of the 3rd respondent – Society delegating the name of the petitioner to the 2nd respondent – Apex Society stating that the alleged resolution of the Respondent No.3 not signed by all the members and that the official nominees who were sent to the concerned District Milk Union, have also participated in the meeting though they have no right to participate in the said meting, there cannot be any suspicion about the 50 delegation of the name of the petitioner to the 2nd respondent – KMF since, Sri Ramachandran, learned counsel for the respondent No.3 – Tumkur Co-operative Milk Producers Co-operative Society has produced the attendance register duly signed by all the members.
50. At this stage, it is also relevant to refer to some of the clauses in ‘En Block Amendment of the Bye-Laws of Karnataka Co-operative Milk Producers Federation Limited’, which are as under:
2. 7 “ Board” means, the board of directors or the governing body of the federation, by whatever name called, to which the direction and control of the management of the affairs of the federation is entrusted to; 2.16 Co-operative Election Commission” means an authority constituted under Section 39 A A of the Act to prepare voters list, conduct election to the board of directors and in the election of office bearer in addition to conduct by-election for casual vacancies. 51
20.0 BOARD OF DIRECTORS201.1 The board shall consist of the following 16+1 persons: i) One elected Director each affiliated Milk Union ii) Secretary to Government, Animal Husbandry and Fisheries Department ii) Registrar of Cooperative Societies iv) Nominee of the National Dairy Development Board v) Managing Director of the Federation THE TERM OF BOARD OF DIRECTORS, The term of Board of Directors shall be 5 years from the date of election and it shall be deemed that such Members have relinquish their office from the date of completion of the aforesaid period. The date of General Election shall be fixed by the Co-operative election commission based on the requisition from the federation six months earlier for the election of the NEW Board of Directors or in the absence of the Board by the Administrator or a special officer. 52 ELECTION OF CHAIRMAN: The Managing Director shall within fifteen days from the date of election on the direction from the election commission immediately before the expiry of the term of office of the chairman, convene a meeting for the purpose of electing the Chairman. One of the Director who is not a candidate for the election of Chairman, shall be chosen to preside over such meeting. The Managing Director shall have no right to vote in such election. 22.1 CASUAL VACANCY: Any vacancy in the office of the members of the board of the Federation by reason of death, resignation, removal or otherwise, shall be filled up by cooption of an elected member of the committee of such member Milk Union. The term of such co- opted member shall be remainder of the term of the Member in whose place the co-option is made. If the term is less than 2 ½ year the board of directors to competent to co-opt. If the remaining period is more than 2 ½ years, the managing director/board will intimate immediately to the co-operative election commission for the filling up the vacancy through by- election. 53
51. On careful perusal of the aforesaid clauses of ‘En Block Amendment of the Bye-Laws of Karnataka Co- operative Milk Producers Federation Limited’, it clearly depicts that the Board of Directors of the KMF shall consists of one elected Director of each affiliated Milk Union and therefore the election to become Director of the 2nd respondent – KMF is mandatory. Therefore the contention of the petitioner that mere delegation of name of anyone of the members of the Managing Committee of the 3rd respondent to the 2nd respondent - Apex society in view of the provisions of Sections 21 and 28 of the Act is enough and there is no need to conduct election to become the Director of the 2nd respondent – KMF, cannot be accepted.
52. Though a contention was raised by the learned counsel for the petitioner that in respect of process relating to delegation is concerned, Section 21(2)(a) of the Act stipulates that the Board of a Co-operative Society which is a member of another Co-operative Society may appoint one 54 of the members of the Board to vote on its behalf in the affairs of that other society, the same cannot be a ground for non-conducting of election to become the Director of the 2nd respondent – KMF as contemplated under the provisions of section 39A of the Act r/w Rule 13BB, Rule 13C and Rule 14(G)(2) and (3) of the Rules.
53. Sri Basavaraj, learned counsel for the Respondent No.4 - Society, which delegated the name of the petitioner to the Respondent NO.3 – Society has contended that in view of the provisions of Section 126 of the Act, no act of co-operative society or any Board or of any officer shall be deemed to be invalid by reason only of the existence of any defect in the constitution of the society or the Board or in the appointment or election of an officer or on the ground that such officer was disqualified for his appointment. The same cannot be accepted. The provisions of Section 126 of the Act has no relevance to the appointment under Section 21(2)(a) of the Act. The only issue in the present writ 55 petition is whether the unanimous resolution made by the Respondent NO.3 delegating the name of the petitioner to the Respondent No.2 – KMF itself amounts to he becoming the Director of the 2nd respondent – KMF in the absence of election. As already stated supra, in view of the provisions of Section 39A, Rules 13BB, Rule 13-C and Rule 14 G(2) and (3) of the Rules and the bye-laws of the KMF, the election is mandatory to become Director of the 2nd respondent – KMF and therefore the contention of the learned counsel for Respondent No.4 also cannot be accepted.
54. It is also relevant to state that the 2nd respondent – KMF filed memo dated 3.3.2020 before this Court in Writ Petition No.31171/2019, which reads as under: “1. That the Respondent No.4 had intimated that the petitioner herein has been elected as a delegate to represent the Respondent No.4 as per Annexure-F dated 19.7.2019. This respondent could not 56 consider the said proposal of the petitioner since the same was not received by this respondent before the scheduled date, namely, 14.6.2019.
2. It is submitted that since the place of delegate of Respondent NO.4 is vacant, and the said place has to be filled by the Respondent No.2, notwithstanding the delay in submitting the name of the delegate vide Annexure-F, this respondent No.2 has no objection in accepting the petitioner as the delegate of 4th respondent.
55. It is also not in dispute that the Commissioner, State Co-operative Election Authority appointed Smt. S.M. Mangala, Land Acquisition office, BDA as the Returning Officer by an order dated 25.9.2019 to conduct election to the remaining vacant posts of Directors of the 2nd respondent – KMF.
56. This Court while considering the provisions of Section 21(2) of the Mysore Co-operative Societies Act in the case of P. Channaveerappa vs. Mrs. Co-operative 57 appellate Tribunal and others reported in 1968(2) Mys.L.J.
528 held as under: We do not agree. It is true that clause (a) says that the appointment which could be made under it is subject to rules made under the Act, and, as pointed out by Mr. Gopal, Section 129(1) of the Act empowers Government to make rules with respect to the appointment by a co-operative societies of one of its members to represent and vote on its behalf at a meeting of another co-operative society of which it is a member. If no rules have been made under the provisions of that clause, what should follow is that the appointment under Section 21(2) is not controlled by any rule since none was made. But that would not enable someone who is not appointed by the society to register a vote on its behalf. The source of the right to so vote on its behalf is an appointment by the society, whether there is a rule regulating such appointment or no, and if there be no appointment, no one could vote on its behalf, even if he be an officer of the society as defined by Section 2(g) of the Act such as the president, vice- president, the secretary and the like. Some argument was expended over the question whether an appointment authorized by 58 Section 21(2)(a) could be made by a resolution of the subsidiary co-operative society directors or whether such appointment could be made only by the general body of the members of that society. Section 26 of the Act says that the final authority in a co-operative society vests in the general body of members. But the proviso to that section states that that power which vests in the general body shall not affect any powers conferred on a committee or any officer of a co-operative society by the rules or the bye-laws. It is admitted that with respect to the matter to which section 21(2) relates, no rules have been made under section 129(1)(g) by Government. It is also undisputed that under the bye-law of the society, the president was not endowed with the power to make an appointment under section 21(2)(a). In that situation the only process by which the appointment could have been made under that clause was by a resolution of the general body of members in whom under section 26 that power resided. It was pointed out to us by Mr. Gopal that the definition of an ‘officer’ contained in section 2(g) of the Act is a comprehensive definition which includes 59 the president, vice-president and the secretary among others, and that if the secretary or the president of the three co-operative societies participated at the election without an appointment under section 21(2) of the Act, all that could be said was that there was a defect in the appointment of those persons. That is not how we should read or understand section 126. It does not speak of defects in the appointment; it speaks only of defects in the appointment to a post under the society or in the election of an officer to which there could be an election. That section read with the definition of an ‘officer’ makes it clear that if there is any defect in the election of the person who has to be elected to occupy an office under the society, that defect shall not invalidate the act of the co-operative society. It is equally clear that that would be the position even if there is a defect in the appointment of an officer who has to be appointed to a post under the society. The appointment of which Section 126 speaks is not the appointment which is authorised by section 21(2)(a). Its operation is restricted only to appointments to posts. 60 Moreover this is not a case in which we could say that there was a defect in an appointment under section 21(2)(a). This is a case in which there was no appointment of any one to vote on behalf of the subsidiary society. We should not overlook that there is a distinction between a case where there is an appointment made under Section 21(2)(a) which is defective and a case in which there is no appointment at all. So, even on the supposition that Section 126 cures defects in appointments made under Section 21(2)(a) and in our opinion it has no application to such defects—it becomes obvious that, since in the case before us no appointment at all was made of any one to vote on behalf of the subsidiary co-operative society, no appeal could be made to the provisions of section 126.
57. This Court while considering the provisions of Section 126 of the Act in the case of L. Krishnegowda vs. State of Karnataka reported in 1992(2) Kar.L.J.
404 held at paragraphs 4,5 and 6 as under:
4. Very strangely it is on this facet of the case that attracted and invited a lot of argument. The learned Government Advocate who was followed by barrister 61 Sri H.K. Vasudeva Reddy, appearing for some of the respondents relied strongly on Section 126 of the Act, and that says:— “126. Acts of Co-operative Societies not to be invalidated by certain defects.—No act of a co-operative society or any committee or of any officer shall be deemed to be invalid by reason only of the existence of any defect in the Institution of the society or the committee or in the appointment or election of an officer or on the ground that such officer was disqualified for his appointment.” The section appears to be little befogged and it looks as if there is printer's devil as well in that section (sic) that becomes apparent if we read the words ‘existence of any defect in the Institution of the society or committee’. They convey no meaning or purpose at all. On the other hand it should read as any defect in the constitution of the society or the committee. Be that as it may. Lord Denning says, if there is any problem in interpreting a statute first thing is you must do is to iron out the wrinkles and undertaking such an operation I shall read Institution 62 as Constitution. But even so whatever be the bar enacted by Section 126 of the Act, enjoining that any act, deed or whatever had been done in virtue of some defect in the constitution of a committee which spills over to any appointment or election of an officer etc., can only have relevance or reference to the powers of a statutory authority or a forum under the Act. The same provision in a way does appear to limit the powers of the authorities and the forums under the Act, but cannot extend to trammel the power of the High Court in the exercise of the jurisdiction under Article 226 of the Constitution. The power of the Court vested in Article 226 of the Constitution transcends and overrides these limits of the law afflicting the sphere of action of the statutory authorities but cannot be extended (sic) bind a Court in exercise of its jurisdiction under Article 226 of the Constitution. I remain unmoved by that argument with the result, regard being had to the fact that respondents-3 to 7 having participated and voted in the elections at which respondents-8 and 9 were elected as President and Vice-President must be held to be vitiated and set at not.
5. Barrister Sri H.K. Vasudeva Reddy tells me that Section 126 of the Act, is a cure all and it is like the Ganga clause which the Apex Court referred to in the 63 case of B.K. Srinivasan etc. etc. v. State of Karnataka, (1987) 1 SCC658: AIR1987SC1059 It may be so but all that I am saying is so far as this Court is concerned there is nothing to be sanctified by that Ganga clause. As I have pointed out, the curing of an illegality leading to its sanctification could be only before the forums under the statute. But that ground has no relevance to the Court's jurisdiction under Article 226 of the Constitution.
6. In the result, writ petition succeeds and is allowed. Rule issued and affirmed. The Government order dated 21-2-1992 passed by respondent-1 (Annexure-C) and the election of respondents-8 and 9 as President and Vice-President as per Annexure-E is quashed. The 2nd respondent-Bank will again go to the polls to elect a new President and Vice- President within four weeks from today, in accordance with law. No costs.
58. The learned counsel for the Respondent No.4 – Madihalli Milk Producers Co-operative Society relied upon the dictum of this Court in the case of B.K. Srinivasan and others vs. State of Karnataka and others reported in (1987)1 SCC658 wherein the Hon’ble Supreme Court at 64 paragraph-11 dealt with ‘Ganga clause’, Section 76-J of the Karnataka Town and Country Planning Act, 1961 which provides for ‘Validation of the Proceedings’. This Court in the case of L. Krishnegowda vs. State of Karnataka reported in 1992(2) Kar.L.J.
404 while referring to the above dictum of the Hon’ble Supreme Court observed that there is nothing to be sanctified by that ‘Ganga clause’ and the curing of an illegality leading to its sanctification could be only before the forums under the statute, but that ground has no relevance to the Court’s jurisdiction under Article 226 of the Constitution of India. Therefore, the judgment relied upon by the learned counsel for the Respondent NO.4 for interpretation of Section 21(2)(a) of the Act is not applicable to the facts and circumstances of the present case.
59. It is also not in dispute that the definition of an ‘office bearer’ contained in Section 2(g) of the Act is a comprehensive definition which includes the President, 65 Vice-President and the Secretary among others and that if the Secretary or the President of the three co-operative societies participated at the election without an appointment under Section 21(2) of the Act, all that could be said was that there was a defect in the appointment of those persons. That is not how we should read or understand Section 126 of the Act. It does not speak of defects in the appointment, it speaks only of defects in the appointment to a post under the society or in the election of an officer to which there could be an election. That section read with the definition of an ‘office bearer’ makes it clear that if there is any defect in the election of the person who has to be elected to occupy an office under the society, that defect shall not invalidate the act of the co-operative society. Therefore, the said judgment has no application to the facts and circumstances of the present case. 66
60. In so far as the judgment of this Court in the case of P. Gadeppa and others vs. The State of Karnataka, rep. by its Secretary and others reported in ILR2012Kar. 1973 (paragraph-17) relied upon by the learned counsel for the petitioner, there is no dispute with regard to interpretation of Section 21(2)(a) of the Act in the said dictum, but the same has no application to the peculiar facts and circumstances of the present case.
61. Though in the impugned communication dated 11.11.2019 (Annexure-F), the 1st respondent pointed out certain irregularities in the resolution dated 12.7.2019 passed by the 3rd respondent delegating the name of the petitioner to the 2nd respondent – KMF, learned counsel for the 3rd respondent – Society filed copy of the attendance register duly signed by the members of the 3rd respondent – Society. In view of the above and considering the facts and circumstances of the case, there cannot be any suspicion about the delegation of name of the petitioner to 67 the 2nd respondent – KMF by the 3rd respondent. Therefore, the 1st respondent shall conduct election to the remaining vacant posts of Directors to the 2nd respondent – KMF including the petitioner by issuing calendar of events in accordance with law. XII. CONCLUSION62 For the reasons stated above, the point raised in these writ petitions is answered in the affirmative holding that the Election is mandatory to become Director of the 2nd respondent – KMF, inspite of the Resolution dated 12.7.2019 passed by the Respondent No.3 delegating the name of the petitioner to the 2nd respondent – KMF in the peculiar facts and circumstances of the present case.
63. As already stated above, the 1st respondent- State Co-operative Election Authority already appointed the Returning Officer by the order dated 25.9.2019 to conduct election to the remaining vacant posts of Directors of the 68 2nd respondent – KMF. The Returning Officer is hereby directed to issue calendar of events and conduct election to the remaining vacant posts of Directors of the 2nd respondent – KMF including the petitioner, in accordance with law within a period of ten weeks from the date of receipt of copy of this order.
64. Accordingly, Writ Petition No.50873/2019 is disposed off and Annexure-F dated 11.11.2019, the Communication issued by Respondent No.1 is modified, directing the 1st respondent – Regional Commissioner to conduct election to the remaining vacant posts of Directors including the petitioner in respect of the 2nd respondent – KMF in accordance with Law.
65. In view of the subsequent events stated supra, Annexures – ‘F1’ and ‘G’ in Writ Petition No.50873/2019 would not survive for consideration. 69
66. It is also made clear that since the 2nd respondent – KMF already conducted election to the posts of Directors of the 2nd respondent – KMF on 8.7.2019, the prayer sought in Writ Petition No.31171/2019 to permit the petitioner to participate in the election to be held on 29.7.2019 does not survive for consideration.
67. Accordingly, these writ petitions are disposed off with the above observations. Sd/- JUDGE *gss/-