Sharanabasappa and Ors Vs. The State of Karnataka & Ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1194645
CourtKarnataka Kalaburagi High Court
Decided OnAug-09-2017
Case NumberWP 203490/2017
JudgeG.NARENDAR
AppellantSharanabasappa and Ors
RespondentThe State of Karnataka & Ors
Excerpt:
1 r in the high court of karnataka kalaburagi bench dated this the9h day of august, 2017 before the hon’ble mr. justice g. narendar writ petition nos.203490/2017 & 203620-623/2017(cs-el/m) between1 sharanabasappa s/o jagannath reddy age:55. years, occ: agri. r/o yelenavadagi, post-kodala hangarga, tq. aland, dist. kalaburagi.2. mallikarjun s/o shivasharanappa age:50. years, occ: agri. r/o bolani, post-dhannur, tq. aland, dist. kalaburagi.3. suryakant s/o sidramappa kounte age:41. years, occ: agri. r/o yelenavadagi, post-kodala hangarga, tq. aland, dist. kalaburagi.4. shivasharanappa s/o vithal padasalgi age:45. years, occ: agri. r/o bolani, post-dhannur, tq. aland, dist. kalaburagi.5. smt. chandrabhaga w/o panduranga mantagi age:45. years, occ: agril. r/o yelenavadagi, post-kodala hangarga, tq. aland, dist. kalaburagi. ... petitioners (by sri ameet kumar deshpande, adv.) 2 and1 the state of karnataka represented by the principal secretary, department of co-operation, m.s.building, bengaluru-1.2. the asst. registrar of co-operative societies, kalaburagi sub division, kalaburagi-585102.3. the dy. registrar of co-opertative societies, kalaburagi district, kalaburagi-585102.4. the special officer, primary agricultural credit co-operative society, yelenavadagi, taluka-aland, district-kalaburagi, through shri. sanjeev kapoor, co-operative development officer, aland-585104.5. primary agricultural co-operative society ltd., yelenavadagi, taluka-aland, dist. kalaburagi, represented by the secretary-585104.6. the karnataka state co-operative election commission/authority, iii floor, shanti nagar, t.t.m.c. ‘a’ block, bengaluru-27. ... respondents (by sri r. v. nadagouda, aag a/w sri shivaputra udbalkar, hcgp for r1 to r3 and r6; sri. amaresh s. roja, adv. for r5) these writ petitions are filed under articles226and227of the constitution of india praying to issue an appropriate writ, more so in the nature of certiorari and mandamus and quash the order dated2706.2017 passed by the respondent no.2 herein in file the certified copy of which is at annexure-d to the writ petition, in the interest of justice, etc. no.sn-4/regn/special officer/2017-18, 3 these petitions coming on for orders this day, the court made the following: order heard the learned counsel for the petitioners, the learned additional advocate general for respondent nos.1 to 3 and 6 and the learned counsel for respondent no.5.2. the matter is listed for orders and it is taken up for disposal on the request of the learned counsels.3. the petitions are preferred assailing annexure-d, being the proceedings of the asst. registrar of co-operative societies i.e. the second respondent herein, whereby the second respondent has appointed the fourth respondent as a special officer on account of non-availability of minimum number of members to form a quorum to conduct the business as mandated under the provisions of sub-rule (4) of rule 14-ak of the karnataka co-operative societies rules (hereinafter referred to as ‘the rules’ for short) to 4 appoint a special officer to conduct the day-to-day business of the fifth respondent – society and has further directed to hold elections to elect the members for constituting the board afresh as provided under the provisions of section 28(a) of the karnataka co- operative societies act, 1959 (herein after referred to as ‘the act’ for short).4. the petitioners were elected as directors of the fifth respondent – society. the petitioners along with six others had been declared as elected on 23.05.2017. it is contended that by virtue of the election declared on 23.05.2017, the petitioners are entitled to remain in the office and discharge their duties for a period of five years from the date of declaration of election as mandated under the provisions of sub-section (4) of section 28(a) of the act. that by the impugned order, this right conferred on the elected candidates under the provisions of sub-section 5 (4) of section of 28(a) of the act has been curtailed and violated and hence, the impugned order stands vitiated, as being contrary to and against the spirit of the said provision.5. it is further contended that the provisions of section 29(e) of the act provides for filling of casual vacancies arising in the office of the members of the board and that the second respondent ought to have resorted to the said provision only and ought not to have directed for holding of elections for the constituencies from where the petitioners have been elected i.e., the second respondent ought to have directed holding of elections in respect of the six seats only, where the vacancies arose on account of resignation of some of the members. hence, the impugned proceedings directing holding of elections to all the seats of the board afresh is violative of the provisions of the act and calls for interference. 6 6. per contra, the learned counsel for respondent no.5 would draw the attention of this court to the provisions of sub-section (2) of section 28(a) of the act and would contend that to constitute a board of management, there must be not less than 11 number of members including the chief executive.7. he would draw the attention of this court to the provisions of sub-rule (4) of rule 14-ak, which stipulates that the minimum quorum to enable functioning of the board shall be the number next to 50% of the stipulated strength of the board as specified in the bye-laws and the same shall form the quorum for a meeting of the board and if there is no quorum at the time of transacting any business in any meeting of the board, no such business shall be transacted. he would submit that the implication is that the members to form a quorum to conduct the business of the society by the 7 board is that there ought to be atleast six members but on account of resignation of six members out of 11 members, the strength of the remaining members i.e 5 members is not sufficient to constitute a quorum as mandated by the provisions of sub-rule (4) of the rule 14-ak.8. he would also draw the attention of the court to the provisions of section 31 of the act specially enacted to address such situation i.e., where the board has been rendered defunct or un-workable on account of non-availability of sufficient members to form the required quorum and thereby ensure the functioning of the board and for the conduct of the business of the society. he would contend that where the registrar is of the opinion that a co-operative society is unable to function in accordance with the provisions of the act, rules or bye-laws on account of number of members of the board falling short of the required numbers to form 8 a quorum due to disqualification, resignation or death or removal of a member, the registrar, is required to appoint a special officer, the term of whose appointment shall not exceed six months. he would further draw the attention of this court to the provisions of sub-section (2) of section 31 of the act which mandates that the registrar is not required to provide any opportunity to any member or the society, while passing the order u/s 31 of the act.9. he would further draw the attention of this court to the provisions of section 31 of the act to state that on the happening of the circumstances as enumerated under section 31(2) (a) of the act, the remaining members of the co-operative society shall vacate and shall be deemed to have vacated their offices and the special officer shall be deemed to have assumed charge of the affairs of the co-operative society. 9 10. the provisions of section 31 (5) of the act mandates that the special officer shall before the expiry of his term, arrange for constitution of a new board for the co-operative society in accordance with the act, rules and its by-laws. he would contend that the impugned order is in compliance with the terms of the provisions of section 31 of the act and no error or illegality can be fastened to it to hold it as being violative of the provisions of section 28(a) of the act.11. the learned aag would contend that in view of the resignation of a majority of the members of the fifth respondent – society, the consequences automatically follow under section 31 of the act. the consequences that flow are by operation of law and the same cannot be found fault with. 10 12. this court has given its anxious consideration to the various contentions and various provisions relied upon by the learned counsels.13. this court vide order dated 31.07.2017 was pleased to grant an interim order restraining the respondents from notifying the election to the constituencies represented by the petitioners and while so granting the interim order, this court has formulated a point for consideration, which reads as follows: “as to whether the resignation of the majority of the members of the board would result automatic in dissolution of the board.” 14. this court after adverting to the various submissions to the various provisions of the act and rules is of the considered opinion that the act of resignation by a majority of members of the board would indeed result in automatic dissolution of the 11 board in the light of the provisions of sub-section (3) of section 31 of the act which mandates that the remaining members cannot constitute a quorum and they shall vacate or shall be deemed to have vacated their offices. in the light of the language employed and in the light of the deeming provisions, this court is of the considered opinion, that on the occurrence of the circumstances enumerated in section 31 of the act, the remaining members shall be deemed to have vacated their offices.15. it is no doubt true that the provisions of section 28(a) of the act, provides that the management of co-operative society shall vest in a board constituted in accordance with this act. sub-section (2-i) of section 28(a) of the act provides that in case of a primary society and a secondary society whose area of operation extends to a part of the taluk, 11 number of members 12 are required to constitute a board and it is this which is applicable to the fifth respondent.16. sub-section (4) of section 28(a) of the act reads as follows: “(4) subject to the provisions of sections 29-a and 39-a, the term of office of the members of (the board shall save as otherwise) (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; provided that if an election to the (board) of any co-operative society had already been held in accordance with the bye-laws of such society, prior to the commencement of the karnataka co- operative societies (amendment) act, 1997, the term of office of the (board) of such co- operative society shall be three years including the co-operative year in which such election was held.” 13 17. from a reading of the said act, what flows from thereof is that the provision only provides for the maximum period of office to which a elected director is entitled to. it in no way stipulates the minimum period of office. this court concludes as above in the light of the language employed in the provision itself, whereby the term of the office to be enjoyed by an elected member is made subject to the provisions of sections 29(a) and 39(a) of the act. in this regard, a reference to the provisions of section 29(a) of the act, is required and it reads as follows: “29.a. commencement of term of office – (1) [the term of office of the members of the (board) shall commence on the date on which the majority of the elected members of the (board) assume office or the term of the outgoing (board) expires, whichever is later].. (2) notwithstanding anything contained in this act or the rules or the bye- laws of a co-operative society, the (board) shall be deemed to be duly constituted when 14 (the majority of the elected members of the (board) are available) to function as members of the (board) after the [x x x x x]. election. (3) the (board) deemed to be constituted under sub-section (2) shall be competent to exercise all the powers and perform all the functions of the (board) of the co-operative society.” 18. a reading of sub-section (2) of section 29(a) of the act, makes it clear that the board is constituted by operation of law. rather the board is deemed to have been constituted once the majority of the contestants are declared elected and are available to constitute the board i.e. the majority of members are available to enable the functioning of the board. the provisions of sub-section (2) of section 29(a) of the act if read in conjunction with sub-rule (4) of rule 14-ak, the only inference that can be drawn is that the term of office of the board shall commence from the date on 15 which the required number of elected members are available to constitute a quorum as stipulated under sub-rule (4) of rule 14-ak.19. sub-section (2) of section 29(a) of the act states that the board shall be deemed to be constituted on the availability of the elected members. in the instant case, the majority as defined by the rules is that the number which is more than 50% of the strength of the board as specified in the bye-laws. it is relevant to note that what is stipulated is not 50% of the existing strength but a number in excess of 50% of the strength as specified under the act and bye-laws, which in the instant case of the fifth respondent is unavailable. the full strength of the board is eleven in number and a quorum in excess of 50% would necessarily mean 6 members, but the present strength, pursuant to the resignation of 6 members, is only 5 and hence less than the minimum stipulated strength to form a quorum to 16 constitute a functional board and to conduct the business of the society.20. it is also not the case of the petitioners that they constitute the required quorum, to enable the functioning of the board. the other limb of argument canvassed by the petitioners is that the registrar/second respondent herein was vested with the office i.e., exercising the powers and implementing section 29(e) of the act, which reads as follows: “29-e. filling up of casual vacancy in the office of members of the (board)-any vacancy in the office of members of the (board) of a co-operative society by reason of death, resignation, removal or otherwise, shall be filled up in such manner as may be specified in the bye-laws of such society; (provided 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 17 the board is more than half of its original term; provided further that the board may fill up a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the remaining term of office of the board is less than half of its original term;) (provided also that, if the board fails to fill up such casual vacancy within three months of the date of occurrence, the registrar shall fill up through nomination.” 21. the vacancies arising on account of the reasons detailed in section 29(e) of the act is described as a casual vacancy. the word ‘casual vacancy’ is defined by the oxford english reference dictionary in the second edition as follows: (1) accidental; due to chance (2) not regular or permanent; temporary, occasional (3) a unconcerned, uninterested (4) informal. 18 22. from a reading of the definition from the said dictionary, what can be deduced is that the word ‘casual’ refer to something insignificant and that it does not entail any implication of any significance. if the phrase ‘casual’ employed by the legislature is understood in the above terms then the interpretation that has to be placed on the provisions of section 29(e) of the act, is that, the vacancy, in respect of which the elections are directed under the provisions of section 29(e) of the act, does not or will not have bearing on the functioning of the board. if the definition of word ‘casual’ is read in conjunction with reference to the provisions of sub-rule 4 of rule 14-ak and sub-section (2) of section 28(a) of the act, then it must be held to mean that the elections or nominations are impermissible under the provisions of section 29(e), when the total sum of members to be elected/nominated is less than the strength stipulated under sub-rule (4) of rule 14-ak. if the number of 19 vacancies are more than the percentage of strength as provided in the said rule, then the provisions of section 31 of the act would not be attracted.23. the other half of the argument canvassed is that the authority i.e. second respondent is vested with the powers of choosing an option of invoking the provisions of section 29(e) of the act and hence the invocation of the provisions of section 31 of the act is misplaced. the interpretation by the learned counsel for the petitioners is on account of misconstruction of the provisions. the provisions of section 30 (6) of the act clearly mandates that notwithstanding anything contained in this act, the registrar by an order shall appoint a special officer. the provision is in the nature of non-obstante clause. the provision does not vest the authority in the circumstances enumerated with any option. in the event of occurrences of the circumstances enumerated in the provision, the provision does not vest 20 any discretion to the authority in respect of implementation of the provisions of section 31 of the act. hence, it cannot be gainfully argued that the act vests a discretion in the authority either yo invoke the provision of section 29(e) or section 31 of the act. this conclusion by the court is further fortified by the provisions of sub-section (3) of section 31 of the act, which reads as follows: “31. (3) on the issue of the order under sub-section (1)- (a) the members of the (board) of the co- operative society, if any, shall vacate and shall be deemed to have vacated their offices; and (b) the special officer shall be deemed to have assumed charge of the affairs of the co-operative society.” 24. the deeming provisions not only provides for vacation of seats but also provides for assumption of the charge i.e., nominating the person to act and discharge the functions of the special officer as envisaged under 21 the provisions. the appointment of a special officer is mandated by operation of law and does not require any executive act except to implement the act in letter and spirit. hence, the contention on behalf of the petitioner that the authority has erred in choosing to exercise the powers vested under section 31 of the act is without substance and requires to be rejected and is accordingly rejected. for the above stated reasons, the writ petitions are devoid of merits and are accordingly rejected. the interim order granted earlier stands dissolved. sd/- judge srt/jsm
Judgment:

1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE9H DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR. JUSTICE G. NARENDAR WRIT PETITION NOS.203490/2017 & 203620-623/2017(CS-EL/M) BETWEEN1 SHARANABASAPPA S/O JAGANNATH REDDY AGE:

55. YEARS, OCC: AGRI. R/O YELENAVADAGI, POST-KODALA HANGARGA, TQ. ALAND, DIST. KALABURAGI.

2. MALLIKARJUN S/O SHIVASHARANAPPA AGE:

50. YEARS, OCC: AGRI. R/O BOLANI, POST-DHANNUR, TQ. ALAND, DIST. KALABURAGI.

3. SURYAKANT S/O SIDRAMAPPA KOUNTE AGE:

41. YEARS, OCC: AGRI. R/O YELENAVADAGI, POST-KODALA HANGARGA, TQ. ALAND, DIST. KALABURAGI.

4. SHIVASHARANAPPA S/O VITHAL PADASALGI AGE:

45. YEARS, OCC: AGRI. R/O BOLANI, POST-DHANNUR, TQ. ALAND, DIST. KALABURAGI.

5. SMT. CHANDRABHAGA W/O PANDURANGA MANTAGI AGE:

45. YEARS, OCC: AGRIL. R/O YELENAVADAGI, POST-KODALA HANGARGA, TQ. ALAND, DIST. KALABURAGI. ... PETITIONERS (BY SRI AMEET KUMAR DESHPANDE, ADV.) 2 AND1 THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION, M.S.BUILDING, BENGALURU-1.

2. THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES, KALABURAGI SUB DIVISION, KALABURAGI-585102.

3. THE DY. REGISTRAR OF CO-OPERTATIVE SOCIETIES, KALABURAGI DISTRICT, KALABURAGI-585102.

4. THE SPECIAL OFFICER, PRIMARY AGRICULTURAL CREDIT CO-OPERATIVE SOCIETY, YELENAVADAGI, TALUKA-ALAND, DISTRICT-KALABURAGI, THROUGH SHRI. SANJEEV KAPOOR, CO-OPERATIVE DEVELOPMENT OFFICER, ALAND-585104.

5. PRIMARY AGRICULTURAL CO-OPERATIVE SOCIETY LTD., YELENAVADAGI, TALUKA-ALAND, DIST. KALABURAGI, REPRESENTED BY THE SECRETARY-585104.

6. THE KARNATAKA STATE CO-OPERATIVE ELECTION COMMISSION/AUTHORITY, III FLOOR, SHANTI NAGAR, T.T.M.C. ‘A’ BLOCK, BENGALURU-27. ... RESPONDENTS (BY SRI R. V. NADAGOUDA, AAG A/W SRI SHIVAPUTRA UDBALKAR, HCGP FOR R1 TO R3 AND R6; SRI. AMARESH S. ROJA, ADV. FOR R5) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN APPROPRIATE WRIT, MORE SO IN THE NATURE OF CERTIORARI AND MANDAMUS AND QUASH THE ORDER

DATED2706.2017 PASSED BY THE RESPONDENT NO.2 HEREIN IN FILE THE CERTIFIED COPY OF WHICH IS AT ANNEXURE-D TO THE WRIT PETITION, IN THE INTEREST OF JUSTICE, ETC. NO.SN-4/REGN/SPECIAL OFFICER/2017-18, 3 THESE PETITIONS COMING ON FOR ORDER

S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

Heard the learned counsel for the petitioners, the learned Additional Advocate General for respondent Nos.1 to 3 and 6 and the learned counsel for respondent No.5.

2. The matter is listed for orders and it is taken up for disposal on the request of the learned counsels.

3. The petitions are preferred assailing Annexure-D, being the proceedings of the Asst. Registrar of Co-Operative Societies i.e. the second respondent herein, whereby the second respondent has appointed the fourth respondent as a Special Officer on account of non-availability of minimum number of members to form a quorum to conduct the business as mandated under the provisions of Sub-rule (4) of Rule 14-AK of the Karnataka Co-operative Societies Rules (hereinafter referred to as ‘the Rules’ for short) to 4 appoint a Special Officer to conduct the day-to-day business of the fifth respondent – Society and has further directed to hold elections to elect the members for constituting the Board afresh as provided under the provisions of Section 28(A) of the Karnataka Co- operative Societies Act, 1959 (herein after referred to as ‘the Act’ for short).

4. The petitioners were elected as directors of the fifth respondent – Society. The petitioners along with six others had been declared as elected on 23.05.2017. It is contended that by virtue of the election declared on 23.05.2017, the petitioners are entitled to remain in the office and discharge their duties for a period of five years from the date of declaration of election as mandated under the provisions of Sub-section (4) of Section 28(A) of the Act. That by the impugned order, this right conferred on the elected candidates under the provisions of Sub-section 5 (4) of Section of 28(A) of the Act has been curtailed and violated and hence, the impugned order stands vitiated, as being contrary to and against the spirit of the said provision.

5. It is further contended that the provisions of Section 29(E) of the Act provides for filling of casual vacancies arising in the office of the members of the Board and that the second respondent ought to have resorted to the said provision only and ought not to have directed for holding of elections for the constituencies from where the petitioners have been elected i.e., the second respondent ought to have directed holding of elections in respect of the six seats only, where the vacancies arose on account of resignation of some of the members. Hence, the impugned proceedings directing holding of elections to all the seats of the Board afresh is violative of the provisions of the Act and calls for interference. 6 6. Per contra, the learned counsel for respondent No.5 would draw the attention of this Court to the provisions of Sub-section (2) of Section 28(A) of the Act and would contend that to constitute a Board of Management, there must be not less than 11 number of members including the Chief Executive.

7. He would draw the attention of this Court to the provisions of Sub-rule (4) of Rule 14-AK, which stipulates that the minimum quorum to enable functioning of the Board shall be the number next to 50% of the stipulated strength of the Board as specified in the bye-laws and the same shall form the quorum for a meeting of the Board and if there is no quorum at the time of transacting any business in any meeting of the Board, no such business shall be transacted. He would submit that the implication is that the members to form a quorum to conduct the business of the Society by the 7 Board is that there ought to be atleast six members but on account of resignation of six members out of 11 members, the strength of the remaining members i.e 5 members is not sufficient to constitute a quorum as mandated by the provisions of Sub-rule (4) of the Rule 14-AK.

8. He would also draw the attention of the Court to the provisions of Section 31 of the Act specially enacted to address such situation i.e., where the Board has been rendered defunct or un-workable on account of non-availability of sufficient members to form the required quorum and thereby ensure the functioning of the Board and for the conduct of the business of the Society. He would contend that where the Registrar is of the opinion that a co-operative society is unable to function in accordance with the provisions of the Act, Rules or bye-laws on account of number of members of the Board falling short of the required numbers to form 8 a quorum due to disqualification, resignation or death or removal of a member, the Registrar, is required to appoint a Special Officer, the term of whose appointment shall not exceed six months. He would further draw the attention of this Court to the provisions of Sub-section (2) of Section 31 of the Act which mandates that the Registrar is not required to provide any opportunity to any member or the society, while passing the order u/s 31 of the Act.

9. He would further draw the attention of this Court to the provisions of Section 31 of the Act to state that on the happening of the circumstances as enumerated under Section 31(2) (A) of the Act, the remaining members of the co-operative society shall vacate and shall be deemed to have vacated their offices and the Special Officer shall be deemed to have assumed charge of the affairs of the co-operative society. 9 10. The provisions of Section 31 (5) of the Act mandates that the Special Officer shall before the expiry of his term, arrange for constitution of a new Board for the co-operative society in accordance with the Act, Rules and its by-laws. He would contend that the impugned order is in compliance with the terms of the provisions of Section 31 of the Act and no error or illegality can be fastened to it to hold it as being violative of the provisions of Section 28(A) of the Act.

11. The learned AAG would contend that in view of the resignation of a majority of the members of the fifth respondent – Society, the consequences automatically follow under Section 31 of the Act. The consequences that flow are by operation of law and the same cannot be found fault with. 10 12. This Court has given its anxious consideration to the various contentions and various provisions relied upon by the learned counsels.

13. This Court vide order dated 31.07.2017 was pleased to grant an interim order restraining the respondents from notifying the election to the constituencies represented by the petitioners and while so granting the interim order, this Court has formulated a point for consideration, which reads as follows: “As to whether the resignation of the majority of the members of the Board would result automatic in dissolution of the Board.” 14. This Court after adverting to the various submissions to the various provisions of the Act and Rules is of the considered opinion that the act of resignation by a majority of members of the Board would indeed result in automatic dissolution of the 11 Board in the light of the provisions of Sub-section (3) of Section 31 of the Act which mandates that the remaining members cannot constitute a quorum and they shall vacate or shall be deemed to have vacated their offices. In the light of the language employed and in the light of the deeming provisions, this Court is of the considered opinion, that on the occurrence of the circumstances enumerated in Section 31 of the Act, the remaining members shall be deemed to have vacated their offices.

15. It is no doubt true that the provisions of Section 28(A) of the Act, provides that the management of co-operative society shall vest in a Board constituted in accordance with this Act. Sub-section (2-i) of Section 28(A) of the Act provides that in case of a primary society and a secondary society whose area of operation extends to a part of the taluk, 11 number of members 12 are required to constitute a Board and it is this which is applicable to the fifth respondent.

16. Sub-section (4) of Section 28(A) of the Act reads as follows: “(4) Subject to the provisions of Sections 29-A and 39-A, the term of office of the members of (the board shall save as otherwise) (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; Provided that if an election to the (board) of any co-operative society had already been held in accordance with the bye-laws of such society, prior to the commencement of the Karnataka Co- operative Societies (Amendment) Act, 1997, the term of office of the (board) of such co- operative society shall be three years including the co-operative year in which such election was held.” 13 17. From a reading of the said Act, what flows from thereof is that the provision only provides for the maximum period of office to which a elected director is entitled to. It in no way stipulates the minimum period of office. This Court concludes as above in the light of the language employed in the provision itself, whereby the term of the office to be enjoyed by an elected member is made subject to the provisions of Sections 29(A) and 39(A) of the Act. In this regard, a reference to the provisions of Section 29(A) of the Act, is required and it reads as follows: “29.A. Commencement of term of office – (1) [The term of office of the members of the (board) shall commence on the date on which the majority of the elected members of the (board) assume office or the term of the outgoing (board) expires, whichever is later].. (2) Notwithstanding anything contained in this Act or the rules or the bye- laws of a co-operative society, the (board) shall be deemed to be duly constituted when 14 (the majority of the elected members of the (board) are available) to function as members of the (board) after the [x x x x x]. election. (3) The (board) deemed to be constituted under sub-section (2) shall be competent to exercise all the powers and perform all the functions of the (board) of the co-operative society.” 18. A reading of Sub-Section (2) of Section 29(A) of the Act, makes it clear that the Board is constituted by operation of law. Rather the Board is deemed to have been constituted once the majority of the contestants are declared elected and are available to constitute the board i.e. the majority of members are available to enable the functioning of the Board. The provisions of Sub-section (2) of Section 29(A) of the Act if read in conjunction with Sub-rule (4) of Rule 14-AK, the only inference that can be drawn is that the term of office of the Board shall commence from the date on 15 which the required number of elected members are available to constitute a quorum as stipulated under Sub-rule (4) of Rule 14-AK.

19. Sub-section (2) of Section 29(A) of the Act states that the Board shall be deemed to be constituted on the availability of the elected members. In the instant case, the majority as defined by the Rules is that the number which is more than 50% of the strength of the Board as specified in the bye-laws. It is relevant to note that what is stipulated is not 50% of the existing strength but a number in excess of 50% of the strength as specified under the Act and bye-laws, which in the instant case of the fifth respondent is unavailable. The full strength of the Board is eleven in number and a quorum in excess of 50% would necessarily mean 6 members, but the present strength, pursuant to the resignation of 6 members, is only 5 and hence less than the minimum stipulated strength to form a quorum to 16 constitute a functional board and to conduct the business of the Society.

20. It is also not the case of the petitioners that they constitute the required quorum, to enable the functioning of the Board. The other limb of argument canvassed by the petitioners is that the Registrar/second respondent herein was vested with the office i.e., exercising the powers and implementing Section 29(E) of the Act, which reads as follows: “29-E. Filling up of casual vacancy in the office of members of the (Board)-Any vacancy in the office of members of the (board) of a co-operative society by reason of death, resignation, removal or otherwise, shall be filled up in such manner as may be specified in the bye-laws of such society; (Provided 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 17 the board is more than half of its original term; Provided further that the board may fill up a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the remaining term of office of the board is less than half of its original term;) (Provided also that, if the Board fails to fill up such casual vacancy within three months of the date of occurrence, the registrar shall fill up through nomination.” 21. The vacancies arising on account of the reasons detailed in Section 29(E) of the Act is described as a casual vacancy. The word ‘casual vacancy’ is defined by the Oxford English Reference Dictionary in the Second Edition as follows: (1) accidental; due to chance (2) not regular or permanent; temporary, occasional (3) a unconcerned, uninterested (4) informal. 18 22. From a reading of the definition from the said dictionary, what can be deduced is that the word ‘casual’ refer to something insignificant and that it does not entail any implication of any significance. If the phrase ‘casual’ employed by the legislature is understood in the above terms then the interpretation that has to be placed on the provisions of Section 29(E) of the Act, is that, the vacancy, in respect of which the elections are directed under the provisions of Section 29(E) of the Act, does not or will not have bearing on the functioning of the Board. If the definition of word ‘casual’ is read in conjunction with reference to the provisions of Sub-rule 4 of Rule 14-AK and Sub-section (2) of Section 28(A) of the Act, then it must be held to mean that the elections or nominations are impermissible under the provisions of Section 29(E), when the total sum of members to be elected/nominated is less than the strength stipulated under Sub-rule (4) of Rule 14-AK. If the number of 19 vacancies are more than the percentage of strength as provided in the said Rule, then the provisions of Section 31 of the Act would not be attracted.

23. The other half of the argument canvassed is that the authority i.e. second respondent is vested with the powers of choosing an option of invoking the provisions of Section 29(E) of the Act and hence the invocation of the provisions of Section 31 of the Act is misplaced. The interpretation by the learned counsel for the petitioners is on account of misconstruction of the provisions. The provisions of Section 30 (6) of the Act clearly mandates that notwithstanding anything contained in this Act, the Registrar by an order shall appoint a Special Officer. The provision is in the nature of non-obstante clause. The provision does not vest the authority in the circumstances enumerated with any option. In the event of occurrences of the circumstances enumerated in the provision, the provision does not vest 20 any discretion to the authority in respect of implementation of the provisions of Section 31 of the Act. Hence, it cannot be gainfully argued that the Act vests a discretion in the authority either yo invoke the provision of Section 29(E) or Section 31 of the Act. This conclusion by the Court is further fortified by the provisions of Sub-section (3) of Section 31 of the Act, which reads as follows: “31. (3) On the issue of the order under sub-section (1)- (a) The members of the (board) of the co- operative society, if any, shall vacate and shall be deemed to have vacated their offices; and (b) The special Officer shall be deemed to have assumed charge of the affairs of the co-operative society.” 24. The deeming provisions not only provides for vacation of seats but also provides for assumption of the charge i.e., nominating the person to act and discharge the functions of the Special Officer as envisaged under 21 the provisions. The appointment of a Special Officer is mandated by operation of law and does not require any executive act except to implement the act in letter and spirit. Hence, the contention on behalf of the petitioner that the authority has erred in choosing to exercise the powers vested under Section 31 of the Act is without substance and requires to be rejected and is accordingly rejected. For the above stated reasons, the writ petitions are devoid of merits and are accordingly rejected. The interim order granted earlier stands dissolved. Sd/- JUDGE Srt/JSM