IN THE HIGH COURT OF KARNATAKA AT BANGALORE
[ORIGINAL JURISDICTION]

WRIT PETITION No. 15101 of 2001 [GM]

MEMORANDUM OF WRIT PETITION UNDER ARTICLES 226 & 227 OF 
THE CONSTITUTION OF INDIA.

---------------------------------------------------------------------------------------------------------------------

01.  FACTS OF THE CASE    02.  G R O U N D S    03.  GROUNDS FOR INTERIM RELIEF    
04.  P R A Y E R S
   05.  PRAYER FOR INTERIM RELIEF

BETWEEN:

The Karnataka State Judicial Department
Employees House Building Co-operative Society Ltd.,

Having its Office at High Court Building,
Dr. Ambedkar Road,
BANGALORE -1.

Represented by its Secretary/ Manager - 
Sri. Suresh Kumar, Major. . PETITIONER

 

AND

UPA LOK AYUKTA,
M.S. Building,
Dr.Ambedkar Road.
Bangalore -1. .. RESPONDENT.

 


The petitioner above named begs to state as follows:-

FACTS OF THE CASE:

[1] The petitioner society is a registered society registered under the Karnataka State Co-operative Societies Act, 1959, vide its Registration No. J. R. B/R.G.N./39, 4916. 83-84, dated 11-08-1983.

[2] The Petitioner submits that the said society was formed with a laudable object to provide and fulfill the need of its members who belong to Karnataka State Judicial Department in Providing residential sites in and around Bangalore. For the purpose, the petitioner-society has been formed solely from the funds contributed by its members in the form of shares, deposits and value towards the sites, who are working in the Judicial Department in the State. Not a single pai has been requisitioned or contributed by the Stage Government in the formation of the society or in the formation of layout. Further, there is no assistance either in the form of finance or in the form of shares has been contributed by the Government to the petitioner-society. The society is formed on the basis of no-profit no loss. The petitioner-society though registered under the Co-operative societies Act, it does not come within the purview of co-operative society as defined in Karnataka Lok Ayukta Act, 1984.

[3] The petitioner further submits that after the formation of the society, the society has entered into agreement with owners of lands to acquire 170 Acres of lands .Though for the said 170 Acres of land the petitioner entered into agreements with owner, the Government issued notification for acquiring an extent of ..Acres. The society in the entire extent of about 170 Acres, formed layout with sites and distributed the sites in accordance with law to its members in conformity with the Rules and regulations and Bye-laws of the society. The lands were purchased in Allalasandra, Jakkur Plantation and Chikkabommasandra Villages and a beautiful layout has been formed by the petitioner society providing all the civic amenities in the layout. None of the members are having any grievance except a few constables who have vengeance for various reasons against some members of the managing committee of the petitioner-society.      Top

[4] It is pertinent to state at this stage that during the year 1990-91, the Government of Karnataka appointed a committee under the chairman-ship of Sri. G.V.K.Rao to go into the affairs of the housing societies in the state of karnataka abut the mis-deads of some of the societies and to report the same. The G.V.K. Rao committee has submitted its report stating that the petitioner has acted well in acquiring lands and formation of layout within its jurisdiction and in accordance with law.

[5] The petitioner-society states that after the formation of the society, elections were held to its committee of management from time to time in accordance with rules and bye-laws and subsequently during the year 1999 a new committee was elected by the General Body as per Rule-14 of the Karnataka co-operative societies Act. The said committee is constituted in accordance with law and is functioning now.

[6] When the matter stood thus, that the respondent has issued a Notice [Endorsement] dated 06-09-1999 to the petitioner herein stating certain allegations were made against the Secretary/Director of the petitioner-society as per No. Compt/Uplok/BCD-64/99-2000.AR.2[164] and sought for some clarifications. Copy of the said Notice/Endorsement is produced herewith as ANNEXURE-'A' . [023.02]

[7] The petitioner submits that, though the petitioner-society is not duty bound to answer the querries put forward by the respondent, Hon'ble Upalokayukta who has no authority or jurisdiction to issue the notice/Endorsement as stated above, but in order to respect the querry sought for, the petitioner has answered and sent a reply to the said Endorsement on 29-09-1999. A copy of the said reply is produced herewith as ANNEXURE-'B'. [023.03]

[8] Again another letter dated 28-10-1999 was sent to the petitioner stating that the petitioner was called upon to produce layout plan within 7 days, and on failure to produce the same, a seizure and search warrant will be issued, a copy of which is produced herewith as ANNEXURE-'C'. [023.04] Even for this letter, a reply was sent on 05-11-1999 informing about submission of the layout plan and also letter dated 28-11-1992 issued by the B.D.A. to the petitioner/Society intimating the resolution passed by the BDA approving the layout subject to certain conditions. The petitioner has informed in filed a writ petition before this Hon'ble Court. It has also further stated that subsequently the layout came within the Jurisdiction of Yelahanka Municipal Council, and that the Council demanded betterment charges in that regard. A Copy of the said letter is produced herewith as ANNEXURE-'D'. [023.05]  thereafter, the Hon'ble Upa Lok Ayukta has addressed another letter dated 03-05-2000 stating that the petitioner has been directed to furnish all the details such as site Nos., dimensions, nature of use a mentioned in the approved plan, etc, and regarding civic amenity sites directing the petitioner society to hand over civic amenity sites along with the letter to C.M.C., Yelahanka, failing which threatening to take suitable action to get the said work done through the competent authority, a copy of which is produced herewith as ANNEXURE-'E'. [023.06]  In this regard, a reply has also been sent as per ANNEXURE-'F'. [023.07]  by the petitioner. It is submitted the respondent Hon'ble Upa Lok Ayukta, has acted unjustly and without jurisdiction in giving directions.        Top

[9] The petitioner submits subsequently the respondent has sent an Endorsement dated 13-07-2000, a copy of which is produced herewith as ANNEXURE-'G'. [023.08]  In this Endorsement, it is stated that several allegations said to have been made against the management of the petitioner society including conversion of civic amenities into sites and roads into sites and allotment said to have been made to outsiders, and further stating the society should be a model for other Housing Societies in the matter of its management, and further stating that soon after formation of layout with sites and roads ought to have handed over the layout to the Municipality . It is not done as yet, is a serious lapse on the part of the management of the petitioner and gives room for suspicion regarding the conduct of the office bearers, etc. and directed to take action before 31-03-2000. A detailed reply was submitted by the petitioner society pursuant to the endorsement dated 13-07-2000 bringing to the notice of the Hon'ble Upa Lok Ayukta stating there is no basis for the allegations said to have been made against the petitioner-society and that no civic amenity sites were converted into sites and allotted to outsider, nor any road has been converted into sites . It is also stated that by over sight a mistake in respect of site allotted in favor of the former Chief Justice Hon'ble Shri. Y. Bhaskar Rao, road portion was also included while describing the boundary, but subsequently the same has been got rectified by a registered rectification deed bringing to the notice of the allottee. Apart from this, no road or any civil site has been converted into site or allotted to any person or outsider. The petitioner has also stated that way the layout could not be handed over to the Yelahanka Municipality, since some lands which were included in the formation of the layout and sites were remained un acquired and private vendors whose lands were not acquired have filed suits for declaration and for permanent injunction, though, they entered into an agreement of sale in favor of the society, including some sites allotted to its members formed in such an acquired lands, and there is still 10% of the work to the carried out. It was stated that after completion of the said work the layout will be handed over to the municipality including civic amenities of sites, roads, etc. the petitioner has also staped that the society is a House Building Co-operative Society, and allegations of corruption and nepotism are false and no such complaint making such allegations are furnished to the petitioner and also stated that other requirements have already been submitted and complied with though the society is not under obligation to submit such information and replies and sought for dropping of the proceedings . A copy of the same is produced herewith as ANNEXURE-'H'. [023.09]

[10] Subsequently a latter was addressed with new allegations calling for the rates fixed by the society for a plot measuring 60'X90', copy of the resolution/proceedings under which site No. 1253 was allotted to the Vendee and copy of the Order/letter pertaining to site No. 1253, which is the site which has been allotted tot he Hon'ble former Chief Justice Shri. Y. Bhaskar Rao, a copy of which is produced herewith as ANNEXURE-'J'. [023.10]

[ 11 ] A reply was sent on 10-10-2000 mentioning that earlier itself the society has submitted the certified copy of the registers containing the names of the members, the certified copy of register containing the names of associated members, the certified copy of the site allotment register and requested for reference to those copies which have been already furnished, and also informed that the accounts from 1996 to 1999 has been audited. A copy of the said letter is produced herewith as ANNEXURE-'K'. [023.11]  The Petitioner has also addressed another letter dated 10-10-2000 clarifying the allotment rate of site measuring 60'X90' and also about the rectification deed pertaining to site No. 1253, as ANNEXURE-'L'. [023.12]  It is submitted that in regard to allotment of site No. 1253, since by mistake in the boundaries portion of road was also included, which was a dead end road and which serves no purpose, a rectification deed was got executed excluding the road portion from the said site, and thereafter the petitioner - society has requested the allottee to pay the value of site as a corner site, which was agreed to by the allottee. It was also informed the excess value paid for inclusion of excess land, the said excess value paid was adjusted to the value of the corner site and the Vendee has agreed to pay the balance amount to the value of the corner site, after such adjustment. But in spite of it, the respondent has made a grievance about it, which is unfounded and uncalled for.     Top

[12] Thereafter, the Hon'ble Upa Lok Ayukta continued to seek clarification after clarification in one form or the other. The petitioner submits though the society is not required to answer all the queries and clarifications sought for, however has answered all the querries and clarified them honestly believing that they are routing clarification and also due to the fact the Hon'ble Upa Lok Ayukta is also member of the petitioner society and allottee of a site to avoid any mis-giving. But subsequently came to know that notices and endorsement were issued on some complaint making certain allegations against the Secretary and Directors of the petitioner-society which is being persisted and perused. Petitioner sought for copy of the complaint containing allegations in order to reply to the said complaint or allegations. Though it is mandatory in law that complaint copy to be furnished, the copy was not furnished nor the petitioner was made know the contents of the complaint, but went on calling for explanation or answer one after another and each time with different information or requirement. All efforts made by the petitioner to secure a copy of the complaint were in vain. The petitioner is also was not informed as to who made the complaint. It is submitted persons who were either not elected to the committee of management or as office-bearers of the committee or who were not able to get a site allotted might have filed the complaint with false and concocted allegations with malafide intention and with oblique motive, but nothing has been disclosed to the petitioner . No disclosure of any serious allegations, made against the petitioner, which calls for holding inquiry, has been made or revealed. In the absence of allegations or disclosure, the inquiry sought to be held against the petitioner is untenable, arbitrary unjust and principal of natural justice.        Top

[13] It is submitted the complaint appears to have been made in respect of matter involving grievance after the expiry of a period of six months from the date on which action complained of has been committed or occurred and in respect of which enquiry is sought to be held which is barred by limitation. The information called for or enquiry sought to be held refers to matters pertaining to years ago, and are barred by limitation which would be without jurisdiction. It is further submitted the Hon'ble Upa Lok Ayukta has no authority to investigate matters which come within preview of section 8 of the Karnataka Lok Ayukta Act. The alleged complaint which directly hit by Section 8 of the Karnataka Lok Ayukta Act, the Hon'ble Upa Lok Ayukta, has no authority or jurisdiction to investigate the same. In regard to the alleged complaint made, the complainant has a remedy under the Karnataka Co-operative. Societies Act, 1959, which provides for holding enquiry deciding any complaints or grievance and taking action against the petitioner including taking over the management by superceding the committee of management for any sort coming in the management or other non-compliance of provisions of law, etc. apart from that, the petitioner-society is not a Government society or financed by Government to come within the preview of the Karnataka Lok Ayukta Act for initiating any proceeding or action against the petitioner. In view of the same, the proceedings initiated against the petitioner society for holding enquiry on the basis of the alleged complaint by, the Hon'ble Upa Lok Ayukta, is clearly one without jurisdiction and authority of law and the proceedings are liable to be quashed.

[14] In spite of that, letter has been addressed by the respondent making a grievance about the said allotment of site No. 1253, its rates and other aspects are concerned, though there was no dispute between the petitioner and the allottee either about the value or after it became a corner site, and about the adjustment of excess amount paid and payment of balance to the petitioner or any other aspects, a copy of which is produced herewith as ANNEXURE-'M' . [023.13]  It is thereafter another Endorsement was sent to the petitioner society again and again making some allegations even after they have been answered with new additions to the earlier inquiry or information sought to be furnished by the petitioner as per letter dated 23-11-2000, a copy of which his produced her with as ANNEXURE-'N' . [023.14]  The petitioner sent reply dated 01-12-2000 giving all the information sought for although the petitioner is not bound to furnish any of the information and has also stated that as per the decision of the Hon'ble Supreme Court, the Lok Ayukta has no jurisdiction to deal with the matters of the Co-operative. Societies and requested to drop the proceedings, even if, it is initiated on the basis of any complaint of any individual or other wise suo moto, the same is required to be dropped and also bringing to the notice of the Hon'ble Upa Lok Ayukta that similar matters, have already been raised before the Registrar of Co-operative Societies under section-70 of the Karnataka Co-operative Societies Act, and even if it not so, it should be raised under Section -70 of the Karnataka Co-operative Societies Act, and thus sought for dropping the entire proceedings . A copy of the said reply is produced herewith as ANNEXURE-'O' . [023.15]

[15] The Hon'ble Upa Lok Ayukta instead of dropping the proceedings and closing the matter, it is being proceeded with and issued summons witness summoning Shri. C. Shivalingaiah, the President of the petitioner/society summoning to give evidence the case No. COMPT/UPLOK/BDC/64/99-2000, a copy of which is produced herewith as ANNEXURE-'P' . [023.16]  To the said summons issued, the President of the petitioner has sent a reply that he cannot be a witness as the complaint is said to be against the Secretary/President/Director of Karnataka State Judicial Department Employees House Building Co-operative Society Ltd., as he is the President of the said Society, and the complaint is against him also, and requested to withdraw the summons issued in that regard, a copy of which is produced herewith as ANNEXURE-'Q' . [023.17]

[16] The Petitioner submits, the petitioner is a Co-operative Society Registered under the Karnataka Co-operative Societies Act, under the Karnataka Co-operative Societies Act, 1959, section 30 provides for suppression of the committee of management. That sub-section [1] of section 30 reads thus:-

[a] the committee of a co-operative society persistently makes default of is negligent the performance of the duties imposed on it by this Act or the rules or the bye-laws or commits any act which is pre-judicial to the interests of the society or its members, or is otherwise not functioning properly; or

[b] a co-operative society is not functioning in accordance with the provisions of this act, the rules or bye-laws or any order or direction issued by the state Government or the Registrar; the Registrar may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the said committee, and appoint an administrator to manage the affairs of the society for such period, not exceeding [six months], as may be specified by the Registrar. ".

 Top

[17] Section 31 provides for appointment of a special officer, which reads thus:" 31. Appointment of Special Officer:-

[1] where the Registrar is of the opinion that a co-operative society is not functioning in accordance with the provisions of the Act, Rules or bye-laws on account of the number of members of the Committee failing short of the required number to form a quorum due to disqualification, resignation or death or removal of a member or for any other reason, the Registrar may, not with standing anything contained in this Act, Rules or bye-laws, by order appoint a special officer for such co-operative society, for such period not exceeding six months.

[2] Before making an order under Sub-Section [1], it shall not be necessary for the Registrar to give any co-operative society or person likely to be affected by such order, an opportunity to state its or his objection, if any.

[3] on the issue of the order under sub-section [1] :-

     [a] the members of the committee 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 " 

 Top

[18] Chapter VIII of the Karnataka Co-operative Societies Act provides for audit, inquiry, inspection and sur-charges. Section 63 provides for audit. Section -64 provides for inquiry by the Registrar, of his own motion, by himself by a person authorised by him be order in writing. He can hold inquiry into any matter specified in the order touching the constitution working and financial condition of a co-operative society. Sub-section [2] of section -64 provides an enquiry of the nature referred to in sub-section [1] shall be held on the application of :-

[a] a co-operative society to which society concerned is affiliated.

[b] majority of members of the committee of the co-operative society, or

[c] not less than 1/3rd total number of members of the society.

[19] Sub-section [2] [a] of Section - 64 provides that inquiry shall be completed within a period of 6 months, unless it is extended by the Registrar.

[20] Under Sub-section [3] of Section - 64, the Registrar or the person authorized by him shall for the purpose of enquiry under the said provision has powers:-

[a] he shall at all times have free access to books, accounts, documents, securities, cash and other properties belonging or in the custody of the society, and may summon any person in possession or responsible for custody of any such books, accounts, documents, securities, cash and other properties to produce the same at any public office at the head-quarters of the society, or any branch thereof.

[b] he may summon any person, who he has reason to believe, has knowledge of any of the affairs of the society or any branch thereof and may examine such person on oath, etc.

[21] Section - 65 provides of the Act provides for inspection of books of a co-operative society, and the Registrar has power of his own motion or on the application of a creditor of co-operative society, inspect or direct any person authorized by him by an order in writing in this behalf to inspect books of the society, etc..            Top

[22] Section - 70 proceeds for disputes, interalia, notwithstanding anything contained in any law for the time being in force, if any, dispute touching the constitution, management or business or the society arise, amongst members, past members, persons claiming through members, past embers, and deceased members, etc. between the society or its committee, between any other co-operative society and others, etc. such dispute shall be decided by the Registrar or by transfer of it for deposal to any person who has been invested with powers by the State Government in the behalf or refer it for disposal by the Arbitrator appointed by the Registrar.

Thus, the Karnataka Co-operative Societies Act provides for enquiry into any affairs of the society, including the working of the society and proper management, its constitution, affairs of the management of the society, or its business in concerned, which is comprehensive. Such dispute can be raised by any member of the society or any member can make a complaint to the Registrant in respect of the same and the Registrar is competent to take action including superceding the society, appointment of the Administrator or even take action against any member of the committee of management disqualifying him from being a member of the committee of management, or any officer of the society . In view of the same, and in view of Section- 8 of the Karnataka Lok Ayukta Act, 1984, the Lok Ayukta and Upa Lok Ayukta shall not conduct any investigation under the Lokayukta Act when such remedies provided under any law which is not availed or. In a case of a complaint involving grievance, in reps of which, any remedy by way of an appeal, revisit review or other proceedings before any Tribunal Court, officer or other authority, and has not availed of the same, and thus matters which come within the purview of Karnataka Co-operative societies Act and for decision of such matters by the Authorities constituted and appeal provided therein cannot be entertained of any such complaint by Lokayukta or Upa Lok Ayukta . The petitioner submits the grievance in respect of which allege complaint has been made, if any, is one which of within the preview of the authorities constituted under the Karnataka Co-operative Societies Act, who are competent to decide the same, and such remedy is being not availed of, could not entertained by the Hon'ble Upa Lok Ayukta.

[23] The Petitioner submits the petitioner has approached with an application to grant an order sheet copy of the proceedings before the Hon'ble Upa Lok Ayukta. An endorsement has been issued informing the proceedings copy or order sheet copy cannot be granted in view of bar contained in Section - 16 of the Karnataka Lok Ayukta Act as any information obtained in the courts on or for the purpose of investigation and any evidence recorded or collected in connection with such information, shall be treated as confidential . The sad Endorsement is produced herewith as ANNEXURE-'R' . [023.18]

[24] The petitioner has no other alternative or efficacious remedy than approaching this Hon'ble court under its writ jurisdiction under Articles 226 and 227 of the constitution of India. The petitioner has not failed any other writ petition on the same cause of action so far.

  Top

G R O U N D S

[25] The proceedings before the Hon'ble Upa Lok Ayukta on the basis of the complaint said to have been made concerning the constitution, management and business of the petitioner society is concerned is matter of which the authority constituted under the Karnataka Co-operative societies Act are competent to entertain such complaints and decide namely by the Registrar of his nominees or the person authorized by him and against such orders or decisions, appeal lies to the Tribunal and authorities under Section- 105 and 106 of co-operative societies Act and also revision is provided to the Tribunal under Section - 107 and under Section - 108 revision by the State Government. in view of the same, entertaining of such complaint is barred under section - 8 of the Karnataka Lok Ayukta Act, is without jurisdiction cannot be sustained in law.

[26] Section - 8 of the Karnataka Lok Ayukta Act provides as under :-

" SECTION - 8 :- matters not subject to investigation

[1] Except as hereinafter provided, the Lok Ayukta or an Upa Lok Ayukta shall not conduct any investigation under this Act in the case of a complaint involving a grievance in respect of any action.

     [a] if such action relates to any matter specified in the Second schedule: or

     [b] if the complainant has or had, any remedy way of appeal, revision, review or other proceedings before any Tribunal, Court, Officer or other authority and has not availed or the same;

[2] The Lok Ayukta or an Upa Lok Ayukta shall not investigate:-

     [a] .

     [b]

     [c] any complaint involving a grievance made after the expiry of a period of six months from the date on which the action complained against becomes known to the complaint, or

     [d] any complainant involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place;

Provided that he may entertain a complaint referred to in clause [c] and [d] of the complainant satisfied that he had sufficient cause for not making the complaint it him the period specified in those clauses.

[3] In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa Lok Ayukta to question any administrative action involving the exercise of discretion except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised.

[27] As could be seen from Section - 8, which provided that Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under, if the case of complaint involving a grievance in respect of any action of which complainant is or had any remedy by way of appeal, Revision, review or other proceedings including disputes before any Tribunal, Court, Officer or other authority, and has not availed of the same. In view of this specific bar, and the matter which is said to have been complained of in respect of which a remedy by way of proceeding before the Registrar and other Authorities and thereafter by way of appear and Revision and Review being not availed of the said remedy, cannot be investigated by the Hon'ble Upa Lok Ayukta, and thus, it is without jurisdiction and without the authority of law to entertaining any such complaint for investigation .

[28] Sub-Section [2] of Section - 8 also provides that Lok Ayukta or Upa Lok Ayukta shall be investigate any complaint involving grievance made after expiry of a period of 6 months from the date on which the action complained against becomes known to the complainant or any complaint involving an allegation made after the expiry of 5 years, from the date on which action complained against is alleged to have taken place. The Hon'ble Upa Lok Ayukta has not informed the petitioner society abut th ecomplaint and its nature. From the enquiry sought to be made by issuing endorsement and letters based on such complaint the complaint the is completely barred by the limitations, as they have been complained of after the expiry of the period provided in the Act for entertaining such complaints. In view of the same, no action could have been initiated or taken by the Hon'ble Upa Lok Ayukta entertaining such time barred complaints for investigation.

[29] In view of section -8 and also the provisions of the Co-operative societies Act and the powers of Registrar and other officers empowered with authority under the Karnataka co-operative societies Act, it is clear that the alleged complaint made against the Petitioner society is one comes within the preview of the Karnataka Co-operative Societies Act, and such complaints could be preferred/made before the Registrar but not before the Hon'ble Upa Lok Ayukta Entertaining such complaint for investigation without jurisdiction or authority udder law and initiate action or proceedings is illegal and without Jurisdiction. In view of the same, the proceedings initiated is clearly one without the authority of law and liable to be quashed.            Top

[30] Section - 9 of the Karnataka Lok Ayukta Act provides for complaints and investigation, which reads thus :-

Section - 9:- Provisions relating to complaints and investigations

[1] subject to the provisions of this Act, any person may take a complaint under this Act to the Lok Ayukta or an Upa Lok Ayukta.

[2] Every complaint shall be made in the form of a statement supported by an Affidavit and in such form and in such manner as may be prescribed.

[3] Where the Lok Ayukta or an Upa Lok Ayukta proposes after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he;-

[a] shall forward a copy of the complaint to the police servant and the changed competent Authority concerned:

[b] shall afford to such public servant an opportunity to offer his comments on such complaint:

[c] may make such order as to the safe custody of documents relevant to the investigation, as he deems fit.

[4] Save as aforesaid, the procedure the conducting any such investgation shall be such and may be held either in public or in camera, as the Lok Ayukta of the Upa Lok Ayukta, as the case may be considered appropriate in the circumstances of the case.

[5] The Lok Ayukta or the Upa Lok Ayukta may, in his direction, refuse to investigate or cease to investigate any complaint involving a grievance of an allegation, if, in his opinion.

[a] the complaint is frivolous or vexatious or is not made in good faith;

[b] there are no sufficient grounds for investigating or, as the case may be for continuing the investigation; or

[c] other remedies are a vailable tot he complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.

[6] In any case where the Lok Ayukta or Upa Lok Ayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefore and communicate the same to the complainant and the public servant concerned.

[7] The conduct of an investigation under this Act against a public servant respect of any action shall not affect such action, or any power or duty of any other public servant to take further action with respect to any matter subject to the investigation.

[31] Sub-section [3] of Section - 9 provides that whereas the Lok Ayukta or Upa Lok Ayukta proposes after making such preliminary inquiry, as he deemed fit, to conduct an investigation under this Act, he:-

[a] shall forward a copy of the complaint to the public servant and the competent Authority concerned:

[b] shall that such public servant an opportunity to offer his comments on such complaint:

[c] may make such order as tot he safe custody of the documents relating to the investigation, as he deems fit.

Thus, it is obligatory of forward a copy of the complaint to the petitioner and also obligatory to provide an opportunity to offer comments on such complaint by the petitioner. The petitioner submits that neither the complaint copy had been forwarded to the petitioner nor the petitioner has been afforded with an opportunity to offer comments on alleged complaint. However, everything being kept secret by the Hon'ble Upa Lok Ayukta who is trying to investigate into the complaint by holding inquiry which is not permissible law. Such inquiry is bad, arbitrary and illegal.

[32] Petitioner further submits that without complying section 8 and 9 or the Karnatka Lok Ayukta Act, the Hon'ble Upa Lok Ayukta has instituted an inquiry to investigate into the complaint, and in the course of that, has now directed and ordered to submit explanation, comments and produced documents without disclosing as to the nature of complaint or the contents of the complaint, which is not permissible in law. Thus, the inquiry proceedings are liable to be quashed.

[33] From the definition Under Section - 2 [c] Public servant, it is only a person who is President, Secretary or other Office bearers of a registered Co-operative Society, which is receiving or having received any financial aid from the Central Government or the State Government or from any provincial or State or any Authority or body owned or controlled or aided by the Government or the company . The petitioner-society has not received any financial and from the Government or any other authority. As such, the President, secretary and other Directors of the Society will not come within the preview of the public servant as defined under the Lokayukta Act and therefore no complaint could be entertained or investigation could be made of such complaint against the Secretary, President or directors. Thus, the proceedings initiated by the Hon'ble Upa Lok Ayukta is without jurisdiction against the secretary, President or Directors. It is clearly outside the preview of the Lok Ayukta Act.                 Top

[34] Section 2 [c] [ix] of the Karnataka Lok Ayukta Act defines who is a public servant, which reads thus:-

2[12] - 'Public Servant' - means a person who is or was at any time-

[a]

[b]

[c] ..

[d] .

[e] The Chairman and the Vice - Chairman [by whatever name called ] or a member of a local authority in the State of Karnataka or a statutory body or corporation established by or under any law of the State Legislature, including a co-operative society, or a Government Company within the meaning of Section-617 of the Companies Act, 1956 and such other Corporations or boards as the State Government may having regard to its financial interest in such Corporations or boards, by notification, from time to time, specify.

The Chairman and the Vice-Chairman [by whatever name called] or a member of a local authority in the State of Karnataka or a statutory body or Corporation established by or under any law of the State Legislature, including a co-operative society, or a Government. Company within the meaning of Section 617 of the companies Act, 1956 and such other corporations or Boards as the State Government may, having regard to its financial interest in such Corporations or Boards, by notification, from time to time, specify:

[35] As could be seen from the definition of public servant, the chairman, Vice Chairman or member of the co-operative society or a Government company, within the meaning of Section 617 of the Companies Act, must have financial interest of the State Government and the inquiry is contemplated only having regard to financial interest in such co-operative society as specified from time to time. In view of the said definition of Public Servants, the President, Vice Chairman and Directors or the Secretary of the petitioner society cannot be termed as public servant for initiation of proceedings under the Karnataka Lok Ayukta Act. In view of the same also, the proceedings initiated is clearly one without jurisdiction or authority of law. As such it cannot be proceeded with.

[36] The Petitioner submits similar the definition of public servant under the prevention of Corruption Act, 1988 also provides that a Co-operative society must receive financial aid from the Govt. to come within the preview of the Public Servant. In view of the same, proceedings initiated against the petitioner Co-operative society which has not received any financial aid or assistant is clearly without jurisdiction and without the authority of law.

[37] It is submitted that the petitioner-society has not received any financial assistance from the Government at any time, nor from any authority concerned, and there is no financial interest of the Government or other authorities concerned involve in the assets of the petitioner-society. In view of the same, the Secretary, President and Directors or office bearers of the society are not public servants as defined under the Act. As such, the petitioner-society will not come under the preview of Karnataka Lok Ayukta Act for holding an inquiry into its affairs of it in any manner. Thus, the action taken now and proceedings entertained and continued on the basis of the alleged complaint by the Hon'ble Upa Lok Ayukta is clearly without jurisdiction and without the authority of law, which is liable to be quashed.                            Top

[38] As could be seen from the letters/endorsements and correspondence by the Hon'ble Upalokayukta the inquiry is sought to be in regard to the affair and management of the petitioner-society as it comes within the preview of co-operative societies Act. It is submitted that the Lok Ayukta or Upa Lok Ayukta has powers to inquire into the administrative lasers if any specified in the list 2 and 3 of the 7th Schedule to the constitution of India Purported to have been committed by the Government Servants or by certain public authorities. But the administrative if any, in the management and affairs of the petitioner-society will not come within the preview of the matters specified in list 2 and 3 of 7th Schedule to constitution of India and thus the Hon'ble Upa Lok Ayukta has no jurisdiction to inquire into and investigate against the petitioner-society in regard to any such laises if any .

[39] The Hon'ble Upa Lok Ayukta has failed to see that any lapses in the Co-operative society's constitution management and business and administration being controlled under the provisions of the Co-operative societies Act and the Section 64 and 65 contemplates inquiry by the Registrar of Co-operative societies of his own motion or on complaint and also by authorizing an officer to hold inquiry into such matters touching the Constitution, management and affairs of the society and its officers. The Registrar has the authority under Section 69 to surcharge on the basis of such audit, inquiry and inspection and take action against the committee of management of the society, the president, vice Chairman, Chairman or any member of the committee of management or any person who is the officer being entrusted with such management of the society . Further, Section-70 of the Karnataka Co-operative societies Act, provides for dispute touching constitution, management and officers of the society, when arise among the members, past members, persons claiming through such member, between society and any other society and in respect of such matters. In view of the same, any complaint without availing any such remedy by whose name and identify not is barred under section -8 of the Lok Ayukta Act.

Admittedly no such remedy is availed of in respect of the alleged grievance by the Complainant. It is submitted that no where it is provided that the Hon'ble Upa Lok Ayukta can look into the affairs of the society and hold an inquiry, concerning distance which touches the constitution, management and affairs of the society. Thus, the proceedings on the basis of the alleged complaint to hold inquiry and investigate into the matter is clearly barred under law, and could not have been entertained or dealt with.

[40] The Respondent Hon'ble Upa Lok Ayukta has further failed to that the petitioner-society is not a company as defined under Section -617 of the Companies Act to come within the preview of the definition "Public Servant", and there is no financial assistance or financial interest of the Government involved in the affairs of the petitioner-society to attract jurisdiction for holding an inquiry under the provisions of the Karnataka Lok Ayukta Act.                Top

[41] It is submitted that under Section -127-A of the Karnataka Co-operative Societies Act, the office bearers and members and employees of the Co-operative societies Act are public servants within the meaning of Section -21 of the Indian Penal Code, and will not come within the meaning of 'Public Servant" under Section-2 and 12 of the Karnataka Lok Ayukta Act, and Section -2 [2] [iv] [ix] of the prevention of corruption Act, 1988. Thus the provisions of Lok Ayukta Act are not applicable to the petitioner-society. No proceedings could be initiated in regard to the alleged affairs of the management of the society. No proceedings could be initiated in regard to the alleged affairs of the management of the society and the one being entertained and continued is without the authority of law and without jurisdiction.

[42] The Petitioner submits that the inquiry which is sought to be held without even furnishing the copy of the alleged complaint and without affording opportunity to submit comments or replies on such complained is contrary to the provisions of the Karnataka Lok Ayukta Act and contrary to principles of natural justice such inquiry cannot be permitted or allowed to be continued.

[43] As could be seen from the letters and endorsement issued calling upon the petitioner to answer and furnish documents on the alleged complaint and from time to time with different allegation, and particularly if one allegation is answered, making new allegation are all bad and unsustainable in law.

[44] Petitioner submits that the Hon'ble Upa Lok Ayukta is also member of the petitioner-society, and an allottee of a site. In view of the same, entertaining complaints from any other member of the society or initiating action su-moto in regard to such complaints should only be referred to the Registrar of Co-operative Societies and other authorities constituted under the Karnataka Co-operative societies Act to hold an inquiry. Instead of that, the petitioner has been threatened of taking action and also the president of the society has been summoned to give evidence in the course of investigation which is not permissible in law. In view of the same also, the contemplated inquiry in respect of the undisclosed complaint and undisclosed allegations are not proper and correct. It cannot be permitted to be proceeded with and thus, liable to be quashed.

[45] The proceedings and holding of inquiry by the Hon'ble Upa Lok Ayukta is contrary to decision of the Hon'ble Supreme Court reported in AIR 2000 S.C. 937, and thus the same cannot be sustained in law.

GROUNDS FOR INTERIM RELIEF

[46] The petitioner submits the inquiry by the Upa Lok Ayukta in regard to the affairs and the management and business of the petitioner-society is contrary to the prohibition under Section 5 of the Karnataka Lok Ayukta Act. In spite of replies being furnished, the petitioner is being called upon to furnish one or the other report, documents and also the president has been called upon to give evidence and in case the petitioner has failed to submit those documents and replies and the petitioner President failed to give evidence, they are threatened of taking action as contemplated U/S . 13 of the Karnataka Lok Ayukta Act and other provisions, and further stated that for any failure on the part of the petitioner, will amount for exposes to contempt. In view of the same, it would be necessary to stay, holding of the inquiry by the Hon'ble Upalokayukta till the disposal of the above W. P. as prayed for.         

Top


P R A Y E R 

WHEREFORE, the Petitioner prays that the Hon'ble Court be pleased to;-

[a] Call for the records of the proceedings of the Hon'ble Upa Lok Ayukta in Complaint No. UPLOK/BCD/64/99-2000, and ARE/2/ date: 19-03-2000.

[b] Issue a writ of certiorari or any other suitable writ, order or direction as the case may be to quash the proceedings before the Respondent, -Hon'ble Upa Lok Ayukta, in proceeding No. COMP/UPLOK/BCD/164/99/2000/164/ARE-2 as mentioned in Annexure-C and all connected proceedings thereto.

[c] Issue any other writ or direction as the case may be in the circumstances of the case in the ends of justice.                  Top 


PRAYER FOR INTERIM RELIEF

Pending disposal of the above Writ Petition the petitioner prays that this Hon'ble Court be pleased to stay further proceedings before the Respondent-Hon'ble Upa Lok Ayukta in proceedings No. COMP/UPLOK/BCD/64/99-2000, and all connected proceedings thereto and grant such other interim relief/relief's as this Hon'ble Court deems fit to grant, in the interest of justice and equity.

Bangalore,

Date: 04-04-2001 ADVOCATE FOR THE PETITIONER.

ADDRESS FOR SERVICE

M. SHIVAPPA, B.Sc., B.L.  Advocate,
No.5 Parakal Mutt Building,
Tank Bund Road.
BANGALORE - 560 009.

Top