By I C Naik
MOHAN MEGAVATH ? Sounds quite familiar. He has been an extremely active participant in the fierce debate concerning the 97th Constitutional Amendment on www.indiancooperative.com Meghavath approached the Hon. Karnataka High Court for putting an end to a dual legislative enactments for cooperative societies urging for a direction to the State to enact a single Law governing cooperative societies across the State pursuant to the 97th Constitutional Amendment. He stood up himself before the Bench comprising none other than the Honourable Chief Justice D H Waghela and Hon, Justice Ram Mohan Reddy [ WP 52962/2014/GM-RES-PIL]. The dismissal of PIL was authored on 13 2 2015 by Justice Ram Mohan Reddy.
At the stage of the Preliminary hearing the Hon. High Court saw no reason to to go in to the merits or demerits of the PIL. So Meghavath had no opportunity to prove his metal. In reaching to the ill-fated decision, the Division Bench seemed to concur with the order dated 22 4 2013 of the Division Bench of the Hon. Gujarat High Court (CA/WPPIL/166/2012). In that matter the Hon. Guj H C declared Part IXB of Constitution ultra vires the Constitution for want of its ratification by the States.
Meghavath’s PIL is a victim of a doctrine known as (Lat.) stare decisis which means “to stand by that which is decided: The principal that the precedent decisions are to be followed by the courts.” It is a question “whether binding force of decision of a High Court extends beyond its territorial jurisdiction” i.e. is it binding on all other High Courts? The Hon. Bombay High Court in CIT v. Thana Electricity Supply Ltd. ([1994] 206 ITR 727 (Bom.)) had the occasion to examine this question. The Hon. High Court observed that “We are aware that the practice is not uniform among the High Courts, but nevertheless we are of the opinion that it is a desirable one. Unless the judgment of another High Court dealing with an identical or comparable provision can be regarded as per incuriam it should be ordinarily followed”. (Per incuriam, refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant.) Quite pertinent case law is that established by the very same Karnataka High Court in Patil Vijay kumar v. Union of India [1985] 151 ITR 48, wherein the Hon. Court observed: “.”We wish to add that although a decision of another High Court is not binding on this court, we see no reason for not accepting with respectful caution, any help they can give in the elucidation of question which arise before this court”.
The CJ’s Division Bench did not think of giving heed to the doctrine “per incuriam” but chose to go by the doctrine of stare decisis, the opposite stand seems to have prevailed before the Apex Court at least in two matters of cooperative societies that came up for disposal post 97th Constitutional Amendment and post Guj. HC Order of April 22 2013. The first one was the order dated October 7, 2013 and the second order dated 19 March 2015.
The first order overturned the ruling of the Full Bench of the Kerala High Court, [AIR 2012 Ker 124] holding that a co- operative society registered under the Kerala Co-operative Societies Act, 1969 fall within the definition of “public authority” under Section 2(h) of the Right to Information Act, 2005 and shall be bound by the obligations to provide information sought for by a citizen under the RTI Act. The Supreme Court has touched upon the 97th Constitutional Amendment devoting a full length discussion to the relevance to case before the Bench spread over Paragraphs 19 to 23 (both inclusive) which is an implicit acceptance to Per incuriam doctrine [ Bombay HC (supra).]
The other matter decided by the Apex Court on 19 March 2015 has given expressed recognition to the significance of new Constitutional Mandates to States not by just discussing the whole of 97th Constitutional Amendment but by applying it to negate applicability of several of its own judgments of pre 97th Constitutional Amendment era as the Constitutional Amendment made sea changes to the cooperative movement. It has laid down a law at Paragraph 12 namely Thus, by 12.01.2013, all laws on cooperative societies were bound to be restructured in consonance with the Ninety Seventh Amendment of the Constitution of India and, in any case, any provision in the Act or Rules or Bye-laws otherwise inconsistent with the Constitution will be inoperative thereafter. Articles 43B and 243ZT are mandates to all the States and the competent authorities to structure cooperative societies as conceived in the Constitution of India, if not already there. Therefore, we have to see whether the Act, Rules or Bye-laws contain any provision for democratic functioning.
The second time has come before a Bench of Justices ANIL R. DAVE AND KURIAN JOSEPH which dismissed the CIVIL APPEAL NO. 3047 OF 2015 by Vipulbhai M. Chaudhary Versus Gujarat Cooperative Milk Marketing Federation Limited and others on 19 3 2015 (a date subsequent to dismissal by Karnataka HC supra). The Supreme Court has reconfirmed that (Para 12) “ Thus, by 12.01.2013, all laws on cooperative societies were bound to be restructured in consonance with the Ninety Seventh Amendment of the Constitution of India and, in any case, any provision in the Act or Rules or Bye-laws otherwise inconsistent with the Constitution will be inoperative thereafter.”
Meghvath stands good chances after this implicit rejection of the Gujarat HC Order(supra) and in recognition of the fact that Constitutional aspirations overturned various previous judgments of the Apex Court which held “in absence of an express provision of recall of a Chairman, a “No Confidence motion of the Board could not be taken up. This is nothing but an overwhelming acceptance of 97th Constitutional Amendment by the Apex court. It is pertinent to note that the esteemed Counsel like Kabil Sibbal did not press the argument of unconstitutionality of the 97th Constitutional Amendment as held by the order of the same High Court. Per incuriam doctrine referred to by Bombay HC in Thana Electricity Supply (supra) seems to have found favour in case of Guj HC order of 22nd April 2013,
Meghavath, take it in to revision before a larger branch of Karnataka HC or SLP before Supreme Court, though approaching Karnataka HC appears to be a better option,