C E KRISHNEGOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) the petitioners are elected members of vyavasaya seva sahakara sangha limited, chikkade, the election to the said membership of the board of directors took place on 27-2-1991. Nine members were elected. Out of them five belong to janata party and four belong to congress (i). Bye-law 14 of the bye-laws of the said society provides that on the board of directors there shall be two representatives, one a nominee of the assistant registrar grama sevak and the other representing the financial institution. The total strength, therefore, is 9+2= 11. The secretary of the society convened a meeting of these 11 members of the board of management on 11-3-1991 for the purpose of electing the president, vice-president and such other office-bearers. Before the meeting could take place, the government of Karnataka issued a direction in No. Gmw. 88, mm 91, dated 2-3-1991 extending the time limit for holding the meeting of the executive committee and the election of president, vice-president and other office-bearers from the prescribed 30 days to 45 days. The said direction also stated that it shall be in force for a period of 45 days or until such time the government may decide from the date of its publication. Accordingly, a meeting of executive committee was held on 21-3-1991. However, the government issued a notification in cmw. 99, ccb 91, dated 5-3-1991 in exercise of power under Section 29 (1) of the Karnataka co-operative societies act (hereinafter referred as the act) nominating respondents 5, 6 and 7 as members of the board of management of the 4th respondent-society. After receiving the said notification, the secretary of the society issued a notice on 1-4-1991 to all the nominated members fixing the date of meeting as 10-4-1991 for electing the president of the board of management. The petitioners aggrieved by the notification dated 5-3-1991 cams forward with this writ petition. In the writ petition, as prayed for, an interim stay was granted. But, ultimately by an order dated 11-4-1991 the stay was vacated. Thus, the writ appeal.

(2.) when the writ appeal came up for admission, we directed the writ petition itself be decided on merits. That is how the writ petition also is before us. Mr. B. T. Parthasarathy, learned counsel for the petitioners, vehemently urges that already two nominations have taken place to the board of management one representing the assistant registrar and the other representing the financial institution. Where, therefore, the bye-law reflects what is contained under Section 29 (1) of the act that bye-law must be given its full effect. The result would be the two nominations would stand excluded from the purview of Section 29 of the act. In other words, excluding those two nominations, the power to nominate under Section 29 of the act should be confined to only one ; otherwise, it would render the election itself nugatory and it will silence the voice of democracy. In support of this submission reliance is placed in Naganna Gowda N. G. And another V. State of Karnataka and others, [1987 (2) KLJ 389] and in Kumaraswamy V. State of Karnataka and others, [1979 (1) KLJ 105]. On the strength of these judgments it is argued, where the powers under sections 29 and 53-a of the act are held to be mutually exclusive, if there is a bye-law which reflects what is contained in Section 29 (1) that power, though traceable to the bye-law, should be held as one exercisable under Section 29 (1) therefore no additional nomination was permissible.

(3.) in opposition to this Mr. Vasudeva Reddy, learned counsel appearing for the nominated members submits that bye-law 14 lays down as to what should be the composition of the board of directors. That says from among the small farmers and the marginal farmers four should be elected ; from among S. C. And S. T. One shall be elected ; and four others to be elected from various other categories. These are the electoral process. However, the assistant registrar's representative and the representative of the financlai institution who are also to be on the board of management, do not come by way of process of election and have nothing to do with the nomination under Section 29 of the act. Under the said Section the government is given an independent power to nominate its representatives in order to safeguard its interest, provided if it had contributed to the share capital or fulfils the conditions adumbrated under Section 29 (1). The very object of providing a non obstante clause is to have a power independent of the bye-law. In other words a bye-law cannot whittle down the statutory provision. Besides, a bye-law is merely an agreement having no statutory force. The power is as aid down in Co-operative Central Bank Ltd. And others V. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others, [AIR 1970 SC 245]. The statutory power under Section 29 (1) of the Act is to enable the state to have its representative irrespective of what the bye-law might say. Therefore, merely because there are two other nominees, one that of the assistant registrar and other of the financial institution, that does not mean the power under Section 29 (1) is circumscribed. 1979 (1) Karnataka law journal 105 (supra) dealt with the question whether sections 29 and 53-a of the act are mutually exclusive. Beyond that it has no authority. Again in 1987 (2) Karnataka Law Journal 389 (supra) what came up for consideration was a similar question. However, the learned single judge found that the bye-law in that case namely 21 (1) merely, reflects what was contained under Section 29. Therefore, the nomination must be presumed to be under Section 29 of the act. That again does not advance the case of the petitioners.