Gangolli Primary Fishermens Co Operative Society Ltd vs State Of Karnataka Department Of Co Operation & Others

S.R. Krishna Kumar, J

In this petition, the petitioner seeks the following reliefs:

“i. Set aside order dated 28.06.2024 bearing No.SANI38:RSR/62/RGN/2024-25 passed by Respondent No.3 (Annexure-A) and consequently set aside the Registration Certificate dated 28.06.2024 bearing No.51247 in favour of Respondent No.4 (Annexure-A1);

ii. Direct the Respondent No.3 not to register any new co-operative society relating to fisheries in Vandse Hobli, Kundapura Taluk, Udupi District;

iii. Award costs of these proceedings;

iv. Grant such other order as this Hon’ble Court deems fit under the facts and circumstances of the case, in the interests of justice.”

Heard learned counsel for the petitioner and learned AGA for respondent Nos.1 to 3 and learned counsel for respondent No.4 and perused the material on record.

In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits on 14.06.2024, respondent No.3 has granted permission to respondent No.4 to form a Society, pursuant to which respondent No.3 passed the impugned order dated 28.06.2024 registering respondent No.4 as a Co-operative Society under Section 7 of the Karnataka Co-operative Societies Act, 1959 (for short “the said Act of 1959”) r/w. Rule 3-B of the Karnataka Co-operative Societies Rules, 1960 (for short “the said Rules of 1960”). It is the grievance of the petitioner that the petitioner – Society was established on 28.02.1939 within the same vicinity and same area as that of respondent No.4 and respondent No.3 has proceeded to pass the impugned order dated 28.06.2024 in contravention of Rules 13-B of the said Rules of 1960 and consequently, the impugned order deserves to be set aside and the matter be remitted back to the concerned reconsideration afresh after hearing both petitioner and respondent No.4 in accordance with law. In support of his contentions, learned counsel for the petitioner placed reliance upon the judgment of this Court at Dharwad Bench in the case of Prathamika Krushi Pattina Sahakari Sangha Niyamita and another Vs. The Registrar of Co-operative Societies and others – W.P.No.144571/2020 dated 24.08.2021.

Per contra, learned counsel for respondent No.4 submits that an order passed under Section 7 of the said Act of 1959 is appealable under Section 106 of the said Act and in the light of the availability of equally efficacious and alternative remedy of preferring an appeal, the petition is not maintainable. It is submitted that the petitioner is not an aggrieved person and does not have locus standi to prefer or maintain the petition, which is liable to be dismissed on this ground also. Lastly, it is contended by learned counsel for respondent No.4 and learned AGA that the impugned order has been passed in accordance with law and does not warrant interference by this Court in the present petition especially when the petitioner has not approached this Court with clean hands.

I have given my anxious consideration to the rival consideration and perused the material on record.

Before adverting to the rival contentions, it would be apposite to extract Rule 3-B of the said Rules of 1960, which reads as under:

“Rule 3-B: Factors to be considered by Registering Authority at the time of Registration:

The Registering Authority, while according permission for the collection of initial share capital at the time of registration of a Co-operative Society, shall consider the following namely:-

(i) population in the area of operation of the proposed Co-operative Society;

(ii) assessment of economic and financial feasibility like collection of share, funds from the shareholder;

(iii) overlapping of the existing similar Co-operative Societies;

(iv) whether the draft bye-laws are in accordance with the provisions of Act and Rules.”

A plain reading of the said Rule 3-B will indicate that before granting permission, it is incumbent upon respondent No.3 to consider various parameter including population in the area of operation, assessment of economic and financial feasibility like collection of share capital and funds from the shareholders, whether there was any existing Co-operative Societies and whether the draft bye laws are in accordance with the Rules etc., and thereafter, proceed further in the matter.

A perusal of the impugned order will indicate that the various parameters referred to at Rule 3-B of the said Rules of 1960 have not been examined or taken into account by the respondents. Under these circumstances, I am of the view that the impugned order being contrary to the provisions of Rule 3-B, the impugned order deserves to be quashed.

In so far as contention urged by learned counsel for respondent No.4 in the light of availability of equally efficacious and alternative remedy of preferring an appeal under Section 106(a) of the said Act of 1959, the present petition is not maintainable, in view of my findings recorded herein before that the impugned order is contrary to said Rule 3-B of the said Rules, 1960, which is a statutory provision mere availability of alternative remedy of preferring an appeal would not come in the way of this Court exercising its jurisdiction under Articles 226 and 227b of the Constitution of India.

In so far as the contention urged by respondent No.4 that the petitioner does not have locus standi and that the petitioner has not come to the Court with clean hands and the nature of business of the petitioner and respondent No.4 being different, all these issue are essentially the questions of fact which would have to be decided by respondent No.3 after hearing the parties and as such, the said questions cannot be gone into for the purpose of disposal of the present petition.

In the result, I pass the following:

ORDER

i. The Writ Petition is hereby allowed.

ii. The impugned order at Annexure-A dated 28.06.2024 passed by respondent No.3 is quashed.

iii. The matter is remitted back to respondent No.3 for reconsideration of the claims of both petitioner and respondent No.4 in accordance with law.

iv. Petitioner and respondent No.4 undertake to appear before respondent No.3 on 10.09.2024.

v. Respondent No.3 shall provide sufficient and reasonable opportunity to the petitioner and respondent No.4 and pass appropriate orders on the application filed by respondent No.4 within two weeks from 10.09.2024.

vi. Liberty is reserved in favour of the petitioner and respondent No.4 to produce pleadings, documents etc., which shall be considered by respondent No.3 in accordance with law.

vii. Both parties are reserved liberty to intimate respondent No.3 about the present order even if the copy of the same is not available by 09.09.2024.