. -- » A 4. _ AND;
W]? No.60804~805/2010
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 26TH DAY OF FEBRUARY;
BEFORE C C
THE HONBLE MRJUSTICE A
WRIT PETITION No.6o8G4{L:~SQ5/"2'oIQ
BETWEEN: C C
1. VYAVASAYA SEVA SAHAKARI {,BAI\"1'I<:,"I;I*I3. _
HIREKOPPA t
REP BY ITS CH-AIRM;fII~?'»~.:" " 1 I
SR1 SANKANP;G;C}UDI4_\ MAI.I.;LANAGOUHD_A
KANNAPPAGOEJDAE. 'AGE 60_.'{E.ARS
occ AGRIL R /A'T"-H1RE':<:To?PA VILLAGE
NARGUNETQ IGADAG DIST _ 3
2. KHA1NAPI.IR'+GA.NGAPIJI'é- WAVASAYA
SEVA SA.HAK_ARI ~EAN_K--I,,Tp
KHANAPUR I _ A' _ _ '
REP BY ITS CHAIRMAN
SRI M_ALLAi'€AGOUDA HANUMANTHAGOUDA
. " '_?.'f*EEMMANAGOUD_AR, AGE 61 YEARS
_0*Cc*=AGRI.I., R /AT KHANAPUR VILLAGE
I 'IIARGUND TQ GADAG DIST. ...PETITIONERS
(}E§Y SE.I'.JA&*AI<UIv:AR S.PATIL, SR.ADv FOR
SR__I.F§:';PA'H'IL, ADV)
1: _ -'_1fHi.C'. STATE OF KARNATAKA
REP BY SPECIAL OFFICER/JOINT SECRETARY
DEPT. OF COOPERATION
" M S BUILDING
WP No.60804--805/ 20 10
BANGALORE 1
2. THE RETURNING OFFICER
TO CONDUCT ELECTIONS TO THE
TALUK AGRICULTURAL PRODUCE
MARKETING SOCIETY NARGUND
NARGUND TQ
GADAG DIST I
3. THE TALUK AGRICULTURAL A I. . _
PRODUCE MARKETING SOCIETY NARGIIND
REP BY ITS MANAGER " . -
NARGUND
NARAGUND TQ
GADAG DIST
4. VYAVASAYA SEVA SA-HAI<ARI~ E'ANI<'_LTD.',
BHAIRANHATTI,';-. _
REP. BY IT;<3_PR§ESIDEN'1'.'
SR1.VIRUPAI<SHAP_PA"---.jjj---_ _
S /O LAXiV$APP§$ML7N;A.N'i{OP
AGEI:5:2I'YEARS,'*R;*O"BH-AIRA'NA'I"rI,
TQ:NARGUN1), ..DIST:GAD_AG..'
' I ...RESPONDENTS
(BY SRLM.ITE:-SHIXVIXREDDNZTAGA ROR R1 AND 2,
SRi;V.D.KAM.AR'EDDY, ADV FOR R3,
SP:I.S_.NI.I<ALwAD;___EOR R4)
A A If~THI--S4"PE:IITI_ON IS FILED UNDER ARTICLES 226 AND
2271OE.TIIE~..,CO'NSTITUTION OF' INDIA PRAYING TO QUASH
THE'II/IPDGNEjD'NOTIFICATION DTD.8/2/2010 BEARING NO.
'CO28 CI':.-M2010 ISSUED BY RES.NO.1 VIDE ANNEXURE-E
AND ETC;
PETITION COMING ON FOR ORDERS, THIS DAY,
COURT MADE THE FOLLOWING:
WP No.6080-4-805/2010
ORDER
1. Sri.l\/l.KeshaVareddy, learned AGA takes_.§l_:lrioticei:
respondents 1 and 2.
2. This petition is directed against linotification \:l:a~ted’._
08.02.1010 issued by respondelr1tr:vgll\’o.1 produced”vat°r§in’ne§lure– it
E.
3. The case of the petition_er.’i_ils: tr:’at¥’;§etitioner is a C0-
operative Society Lregis_ter_ed’; un¢i’e1~.”~ th.<f provisions of the
Karnataka "1959, with approved bye-
laws {fora_:shor_t1 ‘the a committee of management
consistingiofg 12 me.mb:e1-sf”—..?l”‘rriembers are to be elected from
“A” class category, Zlmembers are to be elected from “B” class
categovry’ and 3 .membe_rs” are ex–officio members. The period of
tii.e’ll1nanagemcr1’t_’committee of the elected members is five
years.._ The,peri;od of existing members has come to an end and
i”~.«._election to the members of the committee of the management
class and “B” class category has to be held before
..__b3l1.(l)lg3.201O in respect of 3″; respondent~»Society.
$5
WP No.60804–805/20 10
4. In all, there are 19 Vyavasaya Sahakari Banks Egiinited
who are “A” class members of the 3rd
Under bye law No.22 (6)(2] of the Bye Laws, to
“A” class members of the committee 3&1′ 00
respondent, the members should hay’e__
the minimum of 200 quintals the’
3?” resp0ndent»~Society during the*lco=~operatiye’ ‘year; Section
29 (C) (5) of the Act conferspovifer Government to
issue notificationpto relating to
the transaction eftlie .fCo~ojp_erative Society upto monetary limit
fixed by i_sI’iie.2oo6 was issued by the
State Goyernrnent minimum qualification relating to
transaction oi14°ll’i”A_’:’i Aclvavssrnemibers to the extent of 1 lakh a year
lat for a._periold'””o’fl 3 years. However to gain political
take control over the State Cowoperative
Marketingv. .i?’et1;eration which is an apex body of the 3rd
r.espond”enti~ Society, the State Government issued another
dated 08.02.2010 modifying the notification dated
ll’…_l:l16ig%12.2006 and thereby exempting the primary level (:0-
.r%&
” a
WP No.60804-805/20 10
operative societies namely “A” category members from the
minimum qualification. Being aggrieved by the’-lsaid
notification, the petitioners have filed this writ petition; 3 –1-
5. Sri.Jayakumar S.Pati1, learnedv-senior counse1′:va_ppearin’g
for the petitioner submitted that; Section
confers power on the State Gov-ernment” to fix the”~-imiraimumll
qualification relating to transactionlll:o”g1’*.?’}l*C{ _class ‘member with a
Cooperative Society to certain. it does not
confer any power to”e;.<emp't' qzzlaliiieation. In this
regard, he the minimum
qualification'eariijérliiiiged transaction by the "A"
class member of three years. However,
instead of f1§iingithellininim"o.rr1 qualification, by Annexure-E the
.,State ..{§ove1'nment'=has___eXempted from the requirement of
' ' Vmini'm1_,1n1_ quaiifi&:a_tion.
S 6. it fu.rth’e_rsubmitted that it is mandatory that each Co-
. ._op,erative” Society to frame bye~laws as prescribed under Rule 5
ofrhe liarnataka Co-operative Societies Rules, wherein the Co-
golpergative Society has to frame a bye law relating to the terms
(C) is; , thgsuggii
WP No.60804-805/20 E0
provisions of Section 29 (C) (5) of the Act, the notificationis not
sustainable.
8. On the contrary, learned counsel –
submitted that, the State Governmentiiihas
the Act to exempt a cowoperative.s_oci6£3′–.fro1n the,j.a.??,iic’ation’
any provisions of the Act. In consoriance izvithi of
Section 121 read with Section 29″‘(e}I’j(5Vj’;–.t.he goirernvment has
exempted the Societies ‘V =:’ec;uiVI*e_’rneI_1.t of minimum
quaiification. In that this
notification is; ” that most of the co-
operative “the fiood situation in most of
the area 7–have not .ifr?_ln:€~?<1iit:e€§3\ii Iriuch business to qualify to
contest the election: these circumstances and in the
. ,1arger.»interest of thevfarrners the notification has been issued.
'question that arises for consideration in this
petition is:v..ii it
"Whether the Government has power to issue notification
to exempt the society from minimum qualification under
.._hS.iection 29 (C) (5) of the Act?" A
-OK-_f’
WP No.60804»805/20 10
10. Section 29 (C) (5) confers power on the State Government
to fix the eligibility qualification for being appointed orVie1eict_ed
as a member of the Committee of such co-operatiVei”s’ocieti:3{i. _
is in consonance with the same, the State Government. had
issued notification at Annexure–C
this notification is not in dispute even the pervert to iijssuefis.
notification fixing the eligibility’uuquiaiification also not in
dispute. However, what thegovernment
can exempt the requirement to contest
the election. Fact’ gob-e’rn’meiithasfpower to prescribe
qualification, it to not prescribe the
minimum qualification 29 (c) (5) of the Act is not
mandatorj” it in nature. Under the said
provision. the go:r.ernment’ may prescribe the qualification may
meari-s=m’ay not. Viililhough word ‘exemption’ is used in the
at Annexure-E. What is sought to be
done is toV.rem_oi7e the requirement of minimum qualification
«.._and perrfritpiiall the members of the societies i.e., in View of the
fioiod. _situation as most of the societies could not transact much
-.._i:busi}ness during this period and if minimum qualification is
WP N0.60804–805/2010
prescribed} it may prevent large number of members. from
contesting the election and may defeat the very pu.rpo,se~.,_of
holding election. If there is a power to
qualification under the provisions of Section oifpvthie
Act, it has also power not to prescriEoe.,’.:.iIinv
useful to refer to the provisions’ Sec’ti_oin 21
Clauses Act which reads as under?” a
“21. Power to issue, addiyarnend, vary
or rescind notifications, or¢1¢;si,i.;ii,1¢§
Where, by,’CenA._tra:lp a power to
issue notificat’ion_s”orders., rules’ oriibyvewlaws is conferred, then
that power incli.iid_es,,Va,powe’r,_ exercisable in the iike manner
and subject to’ the lilée–Lisanct_io’n”Jand conditions (if any), to add
to, amend, vary ..or’ rescind any notification, orders, rules or
ldyejlaws sdAissL.£ed.” H iiiii M
iv * i’0rder.s,’or Bye laws so issued.
In as7.muchu.”as”the authority which has power to issue, to
include’ power to add, amend very or rescind notification,
contesting the election by means of any bye iaw.
W? NOJBOSO4-805/2010
:10:
11. Provisions of Section 29 (C){5)’ of the Act is not
mandatory power to be exercised by the government, this
provision is directory in nature, government may issue c§r”‘may
9
not issue notification. Further, in View of the provisioris’ pr,
Section 21 of the Generai Ciauses Act, the .poi’w.erftfo K V’
includes power to not to issue ie, to exempt raiso.-:’ — v
12. In so far as bye laws are concer’-ned, no,d7m.i.bt’RuIe’:’5
prescribes that every society registered under.t’hev’:proyisions of
the Act requires to franie”‘bye_’;1daws;” 5 deals with the
nature of bye laws to be framed. regard to the
quaiificationcvofithe be appointed or elected
is concerned ju,*s’j:;g;{g/c;»c.g(s;,j’r;§ ‘bye law for the said purpose
could be ._ ‘VIE Iegisiation requires the State
–~.GoVerriment to do “certain. things and that power having been
“‘._de£eVgated.V_toyit.,Viit__is for the State to prescribe and not for the
Soci,:etyi’to’VfréX’me’g::.the bye law for the said purpose. Hence, the
‘bye ‘prescribing qualification which is covered u / s 29
‘:{C)”(£Et}.y_of the Act, is unenforceable. in my view, it does not give
right to the society to restrict any “A” class member from
?
r
WP No.6080-4-805/2010
: 11 :
13. From Annexure~]?3, it is clear that] the State Government
has exempted the societies from minimum qualification._vii’s.–a~
vis has not prescribed the minimum qualification and .s’a_me _._is».
– v
in consonance with the power conferred on it (45). I’
do not find that there is any error in eXerc’ise”‘«of’ipowerVV
State Government nor there is_a_ny violation of,v–‘pro’visioifzs”vof
“‘1
Section 29 (C) (5); However, far Vasidbeiction ii21 is
Concerned, it may not dire(‘;t.I;y of” the present
case.-
State Government ir1ivii_ss3.1i3ng t.he~ impugned Annexure–E. In the
circumstances,’ Vepetition isfdeVo_id« “of merits and liable to be
dismissed. , –Accordi11gly,~it is “dismissed.
~Sri–;M.I{eshaiia1?eddy, AGA is permitted to file memo of
appearahnce’ within iiotir weeks.
Sc1/ 4
JUDGE