H.K. Ramesh and Others vs The Deputy Registrar of Co-operative Societies and District Registrar of Societies and Others

A.S. Bopanna, J.—The petitioners are before the Court assailing the report of second respondent dated 29.05.2012 in Sl. No. 52/2012-13 (Annexure-N) and the order of first respondent dated 08.06.2012 (Annexure-P) accepting the report. The petitioners are also seeking to declare that the induction of 98 members at Sl. Nos. 114 to 211 as invalid. The third respondent is a Society registered under the provisions of the Karnataka Societies Registration Act (''the Act'' for short) with the object of promoting education. The petitioners, fourth and fifth respondents are the members among others. In addition, the fifth and sixth petitioners are the Vice President and Treasurer, while the fourth and fifth respondents are the President and Secretary of the Managing Committee of the Sangha. The sixth to one hundred and third respondent who have been impleaded subsequently are the newly enrolled members regarding which enrolment the petitioners have made out a grievance. The grievance raised by the petitioners at the first instance was not entertained by the first respondent. The petitioners were therefore before this Court in W.P. No. 33013/2010 and W.P. Nos. 33840-842 (GM-KSR) which was disposed of on 16.06.2011 and first respondent was directed to conduct enquiry u/s 25 of the Act based on the complaint lodged by the petitioners in accordance with law and pass orders. Pursuant to the said order, the first respondent has appointed the second respondent as Enquiry Officer to hold the enquiry and submit his report. The second respondent has submitted a report dated 29.05.2012 (Annexure-W). The first respondent on receipt of the report has by his order dated 08.06.2012 (Annexure-P) accepted the same. Since the Enquiry Officer has rendered the finding that the enrolment of membership has been made as per procedure and such finding has been accepted by the first respondent, the petitioners are before this Court in this petition.

Heard Sri L. Govindaraj, learned counsel for the petitioners, Sri Jayakumar S. Patil, learned Senior Counsel on behalf of Sri V.V. Gunjal, learned counsel for respondents No. 3 to 6, Sri Vijayakumar Patil, learned Government Advocate for first respondent, Sri R.S. Ravi, learned counsel for second respondent and Sri R.V. Jayaprakash, learned counsel for some of the impleaded respondents and perused the papers.

The contention raised on behalf of the petitioners is mainly with regard to the procedure contemplated in law not being followed and sufficient opportunity not being provided by the second respondent and with regard to the manner in which the 98 new members have been enrolled and the interpolation of records for the said purpose which according to the petitioners has not been appreciated by the first and second respondent to come to their conclusion. The decision of a Hon''ble Full Bench of this Court in the case of Bangalore Gram Merchants Association vs. The District Registrar for Societies and Another (ILR 2001 KAR 766) is relied to contend that in view of the provision contained in Section 25 of the Act read with Rule 8 of the Rules, the enquiry once set in motion partakes the character of quasi-judicial enquiry adopting a fair procedure. Such procedure is not followed is the contention. The learned counsel for the petitioner has further referred to the extract of the Managing Committee meeting at Annexures-C, D and E to contend with regard to the manner in which it has been manipulated to illegally enroll 98 members who are all either the relatives or close associates of the fourth and fifth respondents.

Per Contra, the learned Senior Counsel for respondents apart from contending that the procedure for enrolling member as per the byelaw has been followed and the new members have been enrolled, has also made detailed reference to the order sheet maintained by the second respondent about the opportunity being provided to the petitioners, they not making any grievance in that regard before the second respondent and the findings ultimately recorded. The scheme of the Act was referred to contend that in the matter of membership there is no provision to set aside or annul the membership, which can be done only in a suit. The decision in the case of Amiya Vilas Swami and Others Vs. Shankha Brita Das and Others, was relied to contend that the remedy lies in a civil suit.

At the outset, it is to be noticed that the report of the Enquiry Officer and the order of the first respondent made subsequently have arisen as a consequence of the direction issued by this Court in W.P. No. 33013/2011 and W.P. Nos. 33840-842/2010 and as such before going into the question of the efficacy of the remedy under the Act, the grievance of the petitioners need to be examined. The copy of the proceedings sheet maintained by the second respondent-Enquiry Officer is produced by the petitioners at Annexure M to the petition. A perusal of the same in the light of rival contentions will show that the presence of the parties has been recorded on 09.01.2012 and posted to 18.01.2012 and thereafter to 13.03.2012 to produce all particulars. On 13.03.2012 the petitioners had sought that the elected members of managing committee should be summoned. The Enquiry Officer has recorded that they would be summoned in future, if it is necessary. On 19.03.2012, though the documents sought for by the petitioners were not given, they were granted leave to examine the records in the office. On 27.02.2012, 03.04.2012 and 05.04.2012 it has been recorded that the petitioners have examined the records submitted by the third respondent-Society. The same is the position on 17.04.2012 and 26.04.2012 and while adjourning the proceedings on 26.04.2012 it is recorded that petitioners had been informed to submit their written submissions. On 07.05.2012 the fifth and sixth petitioners have submitted their written replies. On 14.05.2012, it is recorded that the reply of President and the statement of two of the petitioners in the writ petition at whose instance the proceedings was initiated have not been submitted. Hence, the notice was ordered. Thereafter on 25.05.2012 the written submission of second, third and fourth petitioners herein was taken on record. On 29.05.2012 it is recorded that all the documents secured in the case has been examined and the report consisting of pages 1 to 20 is prepared and signed.

Insofar as the procedure followed from what is noticed above, it is clear that the oral evidence has not been recorded and there is no cross-examination in that view. As noticed, the learned counsel for the petitioner by relying on the decision in the case of Bangalore Grain Merchants Association has referred to the nature of proceedings that is to be held as contemplated under Rule 8 of the Rules. Sub-rule (4) thereof provides that the Registrar or authorised person may also examine such person as may be considered necessary. It is true that it is a discretion vested with the authority depending on the facts and circumstances of each case where the enquiry would be held and the nature of consideration that is to be made. In the instant case, in the proceedings held on 13.02.2012 the petitioners had made a request to summon the elected members of the managing committee. The Enquiry Officer had recorded that on the future hearing dates they would be summoned if necessary. Though the President and Secretary were to be present they were not present subsequently. The order sheet of the subsequent proceedings has recorded the submission of documents and written statements, but does not indicate the presence of the elected office bearers. The petitioners no doubt could have made their request again before the proceedings was concluded but what is seen is that on 25.05.2012 it was still at the stage of receiving written submissions and it does not record the conclusion of proceedings but all of a sudden on 29.05.2012 the report is prepared and signed. Since the petitioners had made a request for summoning the elected office bearers and the same was deferred, this should have been considered and recorded by the Enquiry Officer before closing the proceedings so as to find out if any further opportunity was required.

If the above position is kept in perspective and the nature of allegation made herein is kept in view, insofar as the enrolment of 98 members it is contended that there were irregularities committed by the elected managing committee by fabricating the proceedings of the managing committee meeting held on 07.05.2009 and that the names of 98 members have been inserted therein and that there is interpolation in the proceedings dated 23.11.2009. These aspects could have been considered effectively only if the members of elected managing committee were questioned on those aspects, for which purpose the petitioners had sought that they be summoned. This is moreso when the Enquiry Officer in his report has relied on the said proceedings of the managing committee relating to enrolment of new members regarding which the petitioners have grievance and marked them as exhibits to form his opinion that the enrolment of members was made as per the procedure contemplated.

When there were allegations with regard to the manner in which the documents were brought about to aid the alleged illegal enrolment and fabrication was alleged, before relying on the same documents as exhibits being the basis for the report, its authenticity should have been tested by permitting the cross-examination of the authors of the said proceedings more particularly when the petitioners had specifically sought that they be summoned and the request had been deferred to be considered subsequently. This is moreso in a circumstance where the fifth and sixth petitioners who themselves were also the office bearers and have affixed their signatures are also making such allegations. No doubt the respondent herein has filed certain receipts for payment of membership fee which has been signed by the sixth petitioner herein. However, the original records relating to the proceedings from which the learned counsel for the petitioner sought to refer to the discrepancies is also not made available to this Court to assess the same herein. In such circumstance, the enquiry contemplated under Rule 8 including examination of the witness sought for should have been adhered to and proceedings should have been completed, so that the report would have contained an objective conclusion.

The above observation made by me will lead to the conclusion that the matter would require reconsideration by the first respondent or an authorised Officer even if it be by the second respondent as the personal allegations against the second respondent are not acceptable. As noticed, the learned Senior Counsel for the third to fifth respondent relied on the decision in the case of Amiya Vilas Swami and Others and also contended that in a proceedings u/s 25 of the Act, except rendering a report the membership cannot be annulled. Hence it is necessary for me to consider as to whether it would be appropriate or expedient to direct reconsideration by the Authority under the Act or relegate the parties to Civil Suit. In that regard, it is seen that in the cited decision, the question that was considered is in the background as to whether a civil suit would be barred in view of the availability of remedy under the Act. There can be no dispute that the Civil Court will have the jurisdiction. At the same time, the fall out of the findings in the proceedings u/s 25 of the Act and as to what further action can be taken will depend on the findings that would be rendered by the competent authority after following the due procedure contemplated in law. That apart as noticed, at the first instance this Court had directed the first respondent to entertain the complaint and conduct the enquiry. Hence, without adverting to the correctness or otherwise of the manner in which the 98 members were enrolled or as to whether the object of enrolling them as members is for the betterment of the third respondent Sangha or whether it has been made with the ulterior motive of enhancing the support base of the fourth and fifth respondents as alleged, the finding and the order would have to be set-aside for not complying with the due procedure and the matter will have to be reconsidered by the first respondent or the authorised Officer. It would be open for the first respondent to re-determine the matter afresh by himself/herself or to authorise the same Officer or any other Officer depending on the availability of appropriate Officers. In the result, the following:

ORDER

(i) W.P. No. 22826/2012 (GM-KSR) is allowed in part.

(ii) The report of the second respondent dated 29.05.2012 (Annexure-N) and the order of the first respondent dated 08.06.2012 (Annexure-P) are set aside.

(iii) The proceedings in Sl. No. 52/2012-13 is remitted to the first respondent for reconsideration in accordance with law.

(iv) The petitioners and the private respondents shall appear before the first respondent on 27.01.2014 as the first date of appearance, without fresh notice, who shall thereafter regulate the proceedings.

(v) Parties to bear their own costs.