® IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH.
DATED THIS THE 29TH DAY OF JANUARY, 2018 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL WRIT PETITION No.111564/2017 (GM-KSR) BETWEEN SHRI. GOPAL Y. UNKAL, AGE: 47 YEARS, OCC: ARTIST, R/O: SHIVANAND NAGAR, 4TH CROSS, DHARWAD-580001. ...PETITIONER (BY SRI. V. M. SHEELVANT, ADVOCATE) AND 1. KARNATAKA VIDYA VARDHAKA SANGHA, DHARWAD, DIST: DHARWAD-580001, BY ITS PRESIDENT.
2. THE RETURNING OFFICER & JOINT DIRECTOR OF CO-OPERATIVE SOCIETY, DHARWAD, KARNATAKA VIDYA VARDHAKA SANGHA, DHARWAD-580001. ...RESPONDENTS (BY SRI. S.S. HALAHALLI FOR SRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R1) (R2 NOTICE DISPNESED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE CALENDAR OF EVENTS DATED:30.09.2017 ISSUED BY THE 2ND RESPONDENT AT ANNEXURE-"J"; AND TO DIRECT THE 2ND RESPONDENT TO ISSUE FRESH CALENDAR OF EVENTS FOR THE YEAR 2016-17 BY PROVIDING RESERVATION FOR SC AND ST AS PER THE DIRECTIONS ISSUED AT ANNEXURE-H.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER In this writ petition, the petitioner has prayed for quashing the calendar of events, dated 30.09.2017 at Annexure-J issued by respondent No.2 by challenging the same and also for a writ of mandamus directing respondent No.2 to issue fresh calendar of events by providing reservation of one seat each for SC/ST member as per the directions issued at Annexure-H.
2. It is the contention of Sri V.M. Sheelavant, learned counsel appearing for the petitioner that respondent No.1- Sangha is registered under the Karnataka Societies Registration Act, 1960 (hereinafter referred to as ‘the KSR Act’, for short) and the petitioner is a member of the said Sangha. It is further contended that respondent No.1- Sangha is getting substantial aid and funds from the Government. In that light, one Mahadev S/o Basappa Doddamani gave a representation to the Hon’ble Chief Minister requesting to make reservation for SC/ST members during the election to the said Sangha. In pursuance of the said representation dated 07.01.2015, the Additional Secretary to Chief Minister issued notice to the Joint Director, Social Welfare Department, on 08.01.2015 to take a decision in the matter and the District Social Welfare Officer visited respondent No.1-Sangha and submitted a report dated 06.06.2015. Subsequently, on 14.11.2017, the Joint Director of Social Welfare Department intimated respondent No.1-Sangha that in the forthcoming election to be held on 17.12.2017, it should reserve one post for the member of the Scheduled Caste and one post for the member of the Scheduled Tribe as per the rules of the Government as the Sangha is getting the aid from the Government. It is further contended that as per Annexure-H, calendar of events for the election of 2016-17 was issued by reserving one post for SC/ST member and one post for women, but they have not followed the direction issued by the Joint Director of Social Welfare Department as per Annexures-G and H. It is further contended that the Sangha is duty bound to follow the reservation policy, but by violating the provisions of law and the constitutional mandate, the Sangha has issued the calendar of events as per Annexure-J. He submitted that though one seat is reserved for SC/ST member, it is not in accordance with the provisions of law. When the reservation policy has not been followed as contemplated under the law to the election to be held for the year 2016-17 amounts to fundamental breach of constitutional provisions and as such the same are liable to be quashed. He further submitted that Section 10(2) of the KSR Act clearly indicates that the societies, which are registered under the KSR Act, have to follow the directions issued by the Joint Director of Co- operative Societies and whatever the amendments which are going to be carried to the bye-laws of the societies, they should be filed before the Registrar within thirty days and the same has to be approved by the Registrar. In the case on hand, though the amendments have been made in the General Body Meeting and submitted to the Registrar, the same have not been approved as they were not in accordance with law and as such, the election cannot be held as per the bye-laws. On these grounds, he prayed for quashing the calendar of events and requested to issue a writ of mandamus directing the 2nd respondent to issue fresh calendar of events by providing reservation to SC/ST member as per the directions issued under Annexure-H.
3. Per contra, Sri S.S.Halahalli and Sri Hanumanthreddy Sahukar, learned counsels for respondent No.1, submitted that earlier though Sangha was registered under the KSR Act, subsequently during 1995 it was registered under the Bombay Public Trust Act (hereinafter referred to as ‘the BPT Act’, for short) and now, it is no longer a Sangha and as such the letters written by the Joint Director of Social Welfare Department is not binding upon the respondent Sangha. He further contended that the calendar of events has been issued as per the bye-laws of the Sangha, no such reservation has been provided and as such, the question of providing reservation separately does not arise at all. They further submitted that the letters which have been issued by the Joint Director of Social Welfare Department at Annexures-D, F, G & H, are not having the force of law; they have made only a request to consider the reservation, but the said letters are not the orders and as such the present writ petition which has been filed by the petitioner is not maintainable in law. They further submitted that the said letters do not indicate any intention of the Government to make reservation in the post or composition of the body, but it only says with regard to the reservation of the post in employment in the Sangha. They further contended that the said respondent No.1-Sangha is a private trust and it does not come within the definition of ‘State’ and as such no direction can be issued to respondent No.1 to make any reservation in the composition of the body of the Sangha, by quashing the calendar of events. It is further contended that if the petitioner is having any grievance with regard to the administration or the matters pertaining to the respondent-Sangha, then under such circumstances, he has to approach the District Court since respondent No.1- Sangha is registered under the BPT Act. They further contended that the government has not been made a party in the writ petition and in that light the said direction cannot be implemented, that too, when no relief has been claimed as against respondent No.2. On these grounds, they prayed for dismissal of the petition.
4. At this juncture, I feel it relevant to state that this Court, on 05.12.2017, passed an interim order, staying the calendar of events dated 30.09.2017, as per Annexure-J, till next date of hearing and subsequently, the same is continued till date. As per the calendar of events at Annexure-J, filing of the nominations was started from 01.12.2017, by fixing the last date as 05.12.2017; the scrutiny of the nomination was fixed on 06.12.2017 between 4.30 p.m. and 7.00 p.m.; withdrawal of the nomination was fixed during office hours on 08.12.2017; declaration of the valid nominations was fixed on 09.12.2017 at 10.00 a.m.; the election was fixed on 17.12.2017 from 7.00 a.m. to 3.00 a.m. and from 4.30 onwards counting and declaration of the election was scheduled. Because of the interim stay granted by virtue of order dated 05.12.2017, the further proceedings as per the calendar of events were not held is an admitted fact.
5. In this writ petition, the first prayer is to quash the calendar of events dated 30.09.2017. Before considering the prayers in the writ petition, I feel it just and necessary to mention here that, it is well established principle of law, as laid down by the Hon’ble Apex Court as well as this Court in catena of decisions, that whenever the process of election starts, normally the Court should not interfere with the process of the election for the simple reason that if the process of election is interfered with by the Courts, possibly no election would be completed without the Courts order. It is also the settled principle that if the election process is stalled, then the very object of the Constitution is going to be defeated. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Shaji K. Joseph vs. V.Vishwanath and others reported in (2016) 4 SCC 429 and yet another decision of Pt. Ram Nath Kalia vs. Election Commission of India and another reported in AIR 1957 SC 694. The relevant portion at paragraph No.15 of the decision of the Hon’ble Supreme Court in Pt.Ram Nath Kalia’s case (cited supra) reads as under:
“ (9) The well-recognised principle of election law, Indian and English, is that elections should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people, which requires that elections should be gone through according to the time schedule. It is therefore, in consonance both with the provisions of Art. 62 and with good sense to hold that the word “election” used in Art 71 means the entire process of election.”
This Court also approved the said proposition of law in the case of L. Ramakrishnappa v/s Presiding Officer reported in ILR 1991 Karnataka 4421. The relevant observations made by this Court are as under;
“It is a settled principle in Election Law that in the case of any violation of Rule regulating allotment of symbols an election of candidate could be set aside if only it is proved that the result of the election was materially affected. Therefore, it cannot be said that in such a case the illegality is such as would call for interference under Article 226.... As far as illegal rejection of nomination paper, which does not involve any disputed question of fact, if the aggrieved party approaches this Court in good time without delay, it is expedient to interfere under Article 226, in order to give the specific relief to the aggrieved candidate, that is, to quash the order rejecting the nomination paper and direct the Returning Officer to accept the nomination and to proceed with the election and also to prevent waste of public money and time and to avoid inconvenience to the public institution concerned....... As far as rejection of nomination paper in concerned, it stands on a different footing and in an Election Petition the relief which could be granted in a Writ Petition cannot be given at all and therefore this Court could interfere under Article 226 in such cases... It is well settled principle in law governing resolution of election disputes that in the case of illegal acceptance of nominations, the election of a candidate can be set aside only if it is proved by evidence that the result was materially affected on account of illegal acceptance of one or more nomination papers. Therefore, in such cases, it is impossible to hold in a Writ Petition that the result of the election is going to be materially affected. Therefore, if the total number of eligible candidates whose nominations are accepted is more than the number of candidates to be elected; even if a few nominations of ineligible candidates are accepted, it would give no valid ground for interference in a Writ Petition. Similarly, if the question as to whether a candidate whose nomination is accepted, is eligible or not, is a disputed question of fact, this Court cannot decide the said question in a Writ Petition. Therefore, as a general principle it can safely be said that a Writ Petition challenging the legality of acceptance of nomination papers should not be entertained.”
In the above decisions, it is further observed that the said aspects are the questions of fact and the said questions of fact cannot be decided by the Court by exercising the power under Article 226 of Constitution of India.
6. Keeping in view the above proposition of law, let me consider the facts relevant to decide this case. It is an admitted fact that the election to the first respondent- Sangha has to be conducted as per the bye-laws and the procedures and not otherwise. It is trite, if the statute or the bye-law prescribes that a thing has to be done in a particular manner it has to be done in that manner or not at all. In saying so, I am fortified by the decision of the Hon’ble Apex Court in the case of Babu Verghese and others vs. Bar Council of Kerala and others reported in (1999) 3 SCC 422. The relevant paragraphs 31 and 32 of the said judgment read as under:
“31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
“Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”
32. This rule has since been approved by this court in Rao Shiv Bahadur Singh vs. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a salutary principle of administrative law.”
7. On perusal of the bye-laws of respondent No.1- Sangha, it is evident that there must be an election and the process of election has to be commenced two months prior to the end of the earlier Board of Governors or the existing body and how the election process has to be commenced has been enumerated as per bye-law No.45 a to u (45 C ¢AzÀ UÀ). On further perusal of the above said bye-laws, it is clear that there is no provision prohibiting the members or voters from challenging the election and even there is no specific provision made in this behalf, where exactly it can be challenged in the event of the members, if they want to challenge. It is needless to say that a member in order to protect the interest of the society, can see that the election is conducted as per the bye-laws of such society and if there is any mal practice or illegalities in holding the election or the process of election, they can challenge. But at the same time this Court is also reminded of the fact that the election is a symbol of democracy and the same has to be conducted strictly in accordance with the procedures established by law or in a fair, transparent and unbiased manner in accordance with bye-laws of the Sangha. Only when the procedures are strictly followed, it would protect the democratic way of conducting the elections. When any deviation from such a procedure is complained of, the Court cannot be a mute spectator to such illegal process of the elections and under such circumstances it can interfere to set right the illegalities which has crept-in to spoil the democratic setup. Though the election process has been stalled, in order to have a fair and open election to the said Sangha, I want to discuss the further contentions which have been raised in this writ petition.
8. The first contention of the petitioner is that the Sangha has not followed the directions issued by the Joint-
Director of Social Welfare Department and has not reserved one seat for the post of Schedule Caste member and one seat for the post of Schedule Tribe member. The said letter is at Annexure-H, which reads as under:
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On close reading of the said letter dated 14.11.2017, the Joint Director of Social Welfare Department has mentioned that since the said Sangha is receiving the aid from the Government and in that context one seat for a member of the Schedule Caste and one seat for a member of the Schedule Tribe has to be provided in the election to be held to the said Sangha. It is an admitted fact that the said letter is dated 14.11.2017 and the election process have been initiated by calendar of events dated 30.09.2017, which goes to show that after the calendar of events has been issued, the letter under Annexure-H has been issued by the Joint-Director of Social Welfare Department. In that light, question of considering the reservation as per Annexure-H does not arise to show the same in calendar of events.
9. It is further contended by the learned counsel for the petitioner that a letter was issued by the Additional Secretary to Chief Minster by letter dated 07.01.2015 along with the report given by the Joint Director of Social Welfare Department for the purpose of reservation. But the said letter does not indicate anything to show that the same has been intimated to the Sangha.
10. Be that as it may, even assuming that the said letter has been received by the Sangha, the petitioner being a member of the said Sangha could have insisted upon the Sangha to amend the bye-laws in pursuance of the said letter, but he has not done so.
11. At this juncture, the learned counsel appearing for the petitioner has also brought to my notice the letter issued by the Joint-Director Social Welfare Department Bangalore dated 02.07.2015 and further contended that under the said letter it has been intimated to reserve one post for Schedule Caste and one post for Schedule Tribe by following the roster compulsorily. Though the said letter has been issued on 02.07.2015 without amending the bye-laws of the respondent No.1-Sangha, no reservation can be provided for in the election process. Even though the said letter is dated 02.07.2015, petitioner has not taken any steps to get incorporated the said request in the bye-laws of the said Sangha. Until and unless the bye-laws are amended incorporating reservation, the question of making any reservation in the calendar of events does not arise at all.
12. Admittedly, when the elections are going to be held as per the bye-laws of the respondent-Sangha and if the bye- laws do not provide any reservation to one post for Schedule Caste and one post for Schedule Tribe, then under such circumstances the contention of the petitioner that the mandate of reservation has not been followed in the calendar of events issued as per Annexure-J is not having any force and it is not acceptable in law. The letter issued under Annexure-H is after the calendar of events, now asking for reservation or to quash is like putting a cart before horse. When already calendar of events has been issued as per Annexure-J, as held in the decision quoted supra, this Court cannot stall the said proceedings until and unless some mala fides or illegalities are shown by the petitioner.
13. At this juncture, the learned counsel for the petitioner brought to my notice an amendment made to Section 28-A.(3)(i) of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the KCS Act’, for short).
On perusal of the said amendment, it indicates that the said section has been amended as per government Order dated 27.07.2016. In this behalf, he pointed out that one seat each has to be filled up by election, in favour of a person belonging to scheduled caste and scheduled tribe.
14. Per contra, the learned counsel for the respondent contended that respondent No.1 is a Sangha registered under the BPT Act, but the amendment is to the KCS Act which is applicable to the Co-operative societies covered under the Act. In that light, the said amendment is not applicable to the facts of the present case and respondent No.1-Sangha.
15. Before going to consider the said contention, I feel it necessary to extract the said amendment to Section 28- A.(3)(i) of the KCS Act which reads as below:
“28-A. Management of Co-operative societies vest in the board. –(1) x x x x x x x x x x (2) x x x x x x x x (3) In the board of every co-operative society there shall be reserved (i) one seat to be filled by election, in favour of the person belonging to the Scheduled Castes and one seat to be filled by election, in favour of the person belonging to the Scheduled Tribes;”
On a close reading of the said provision, it provides for the reservation of one seat for Scheduled Caste and one seat for the Scheduled Tribe members in the Board of every Co- operative Societies. Though Section 28-A.3(i) of the KCS Act was amended on 27.07.2016, the Joint Director of Co- operative Societies in his letter dated 14.11.2017, vide Annexure-H, has not referred to the said amendment, carried out to the said Act.
16. Be that as it may, when amendment to Section 28-A.3(i) to the KCS Act was made by Government Order dated 27.07.2016, neither the petitioner nor the Joint Director of Social Welfare Department, who wanted to respondent No.1-Sangha to provide for reservation, has taken any steps to get amended the bye-laws of respondent No.1-Sangha, nor filed any proceedings before the appropriate Court. When admittedly, the election to respondent No.1-Sangha is conducted in accordance with its bye-laws, without there being incorporation of the amendment into the bye-laws, directly in the election process such reservation cannot be made. In that light, the said amendment will not help the petitioner to further progress his case.
17. Leave that apart, when the counsel for respondent No.1 submits that respondent No.1-Sangha is registered under the BPT Act, then the question of applicability of the provision will have to be decided before the appropriate forum. The petitioner, respondent No.1 and the Social Welfare department were not having the knowledge of amendment and it is also not the case of the petitioner that respondent No.1 has not followed the amended provision of Section 28-A.(3)(i) of the KCS Act. In the absence of any such grounds, the said contention is not acceptable.
18. Respondent No.1-Sangha issued calendar of events on 30.09.2017 as per Annexure-J, and it is seen that neither at the time of issuance of Annexure-J nor prior to that the amendment was brought to the notice of respondent No.1-
Sangha and no steps were taken to carry out the said amendment in the bye-laws of respondent No.1-Sangha.
19. It is the contention of the learned counsel for the respondent that applicability of the amendment and incorporation of the amendment is a matter which has to be discussed and decided under the General Body of the said respondent No.1-Sangha.
20. It is the specific case of the petitioner that respondent No.1 has not made any reservation as per Annexure-H and he had requested to reserve one post for the Schedule Caste and one post for the Schedule Tribe members. However, the letter-Annexure-H is only a request letter and no specific orders have been passed directing respondent No.1-Sangha to incorporate the said direction of the Government in the bye-laws of the Sangha.
21. In order to have the force of law, said amendment must be carried out in the bye-laws. Since, elections of respondent No.1- Sangha is in accordance with bye-laws, the remedy left open to the petitioner is to seek appropriate relief as contemplated under the law if he is advised to do so.
22. Under the said facts and circumstances, the contention, which has been taken up by the learned counsel for the petitioner does not have any force and the same is not acceptable.
23. Even as could be seen from the letters issued by the Joint Director of the Social Welfare Department, he has requested to reserve one post for the schedule Caste and one post for the Schedule Tribe members. Those letters are only request letters and no specific orders have been passed in this behalf to incorporate the said direction of the government in the bye-laws of the said Sangha. Mere issuance of a letter in this behalf cannot be considered as having the force of law so as to execute the same. Petitioner praying the relief must show that he has a legal right to compel the respondent-Sangha to do or refraining from doing some thing or some duty is cast on the respondent. Petitioner gets the rights only through the bye-laws. When bye-laws does not provide for reservation, and calendar of events has been issued in accordance with bye-laws, then under such circumstances, direction to quash or issue fresh direction to reserve the post in the body cannot be issued. In that light, the contention which has been taken up by the learned counsel for the petitioner does not have any force and the same is rejected.
24. Be that as it may, when the correspondence has been started long back during 2015 itself, the petitioner who is aware of all those things ought to have filed an appropriate proceeding before the appropriate Court, either to incorporate reservation as per Section 28-A.(3)(i) of the KCS Act or as per the letter requesting to issue necessary notifications or circulars or orders by the Government. But he has slept over the said right and only after seeing the calendar of events, he has approached this Court belatedly challenging the same. This clearly goes to show that he is not so serious of implementation of the request letter given by the Joint Director. The attitude of the petitioner shows that his intention is only to stall the process of election. It is the further contention of the learned counsel for respondent No.1 that respondent No.1-Sangha is not a ‘State’ within the meaning of Article 12 of the Constitution of India. However, I am not going to deal with that aspect since it requires a detailed inquiry and material. It is the well established principles that even assuming that the respondent No.1- Sangha is a private body, as a general rule, no writ can be issued as against a private body, there are some exceptions to the said general rule which have been introduced by judicial gloss, under such exceptional cases, this Court can issue direction. One of such exceptional cases is that when the institution is governed by a statute which imposes a legal duties upon it; when the institution is a ‘State’ within the meaning of Article 12 even though the institution is not a ‘State’ within the meaning of Article 12, if it performs some public functions, when statutory or otherwise a private institution, then such institution is amenable to the writ jurisdiction. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Ramadeo Baba Kamala Nehru Engineering College vs. Sanjay Kumar reported in (2002) 10 SCC 487. The relevant paragraph No.2 of the said judgment reads as under:
“ 2. The High Court has allowed the petition directing a sum of Rs.95,500 to be refunded. The figure of Rs.95,500 has been arrived at by the High Court by deducting an amount of Rs.1000 from the tuition fees as according to a GO issued by the State Government Rs.1000 was liable to be deducted while making the refund. The only plea which was raised before the High Court on behalf of the appellants was that Appellant 1 being a private unaided educational institution, a petition under Article 226 of the Constitution did not lie against it. No other plea was raised before the High Court. The factum of payment of the tuition fee and caution money by the respondent to Appellant 1 is not disputed. The preliminary objection raised by the appellants has been overruled by the High Court relying on the decision of this Court in Shri Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.Rudani.”
Keeping in view the ratio laid down in the aforesaid decision, it can be safely held that respondent No.1, which is discharging the public functions as per the bye-law, is amenable to the writ jurisdiction under Article 226 of the Constitution of India.
25. The next contention of the learned counsel for the respondent is that the letters which have been issued by the Joint Director of Social Welfare Department do not have the force of law and as such, the question of implementation of such letters does not arise at all. On going through the said letter at Annexure-H, they are only request letters. In pursuance of request letters, whether any reservation has to be made in the said respondent No.1-Sangha or not, is a matter which has to be decided by respondent No.1-Sangha by placing the said matter before the General Body. Unless and until the bye-laws are amended in this behalf, only on the basis of request letters issued by the Joint Director of Social Welfare Department, it cannot be held that there is violation of the provisions of law and the constitutional mandate, as contended by the learned counsel for the petitioner. The letter, which has been issued under Annexure-H, is not the ‘law’ within the meaning of Article 13 of the Constitution of India and the said letters do not have any force of law so as to enforce them through the Courts. Even as could be seen from the contentions taken up the petitioner, he has not made out any grounds to show that since no post is reserved for SC/ST member, how his personal rights have been affected. No doubt, it is well established principle of law that a member can challenge the act of the Sangha, but he has to prove that the act of the Sangha is having some bias or there is abuse of process of law. In this behalf, the petitioner has not made out any grounds. This Court can exercise the power under Articles 226 & 227 of the Constitution of India only when it is of the opinion that there is non-compliance of the mandate of the Constitution or law. When the said letters are in the form of request letters, then in that event this Court cannot interfere with the proceedings of the election only based on such letters. Even it is not the case of the petitioner that he made some representation to respondent and he has not been given any opportunity and principles of natural justice have not been followed. When the petitioner has not filed any appropriate proceedings or has not given any representation to the Sangha to place the matter before the General Body to amend the bye-laws, the act of the petitioner approaching the Court at a belated stage and obtaining stay is not appreciable and the contention of the petitioner that the direction has not been followed by the Sangha does not have any force. In view of the above facts and circumstances of the case, it is for the petitioner to participate in the election process which has been commenced as per Annexure-J.
26. Insofar as the reserving post in respect of SC/ST member is concerned, if the amendment to Section 28-A.(3)(i) and letters are placed before the General Body, it would be in a position to discuss on the said matter in a meeting and thereafter the General Body can take a decision as to whether a reservation of one post for SC and one post for ST members can be made. When the Sangha itself has not acted upon in pursuance of the Act or letters, the petitioner cannot challenge the same by contending that there is violation of provisions of law and the constitutional mandate. Until and unless the reservations are made in the bye-laws of the societies, till then no right will be accured to anybody to stall the process of election which has been commenced by virtue of the calendar of events at Annexure-J. However, in the event of Sangha taking a decision in the said matter and the petitioner is aggrieved by the same, the petitioner can work out his remedy at appropriate/earliest time challenging the act of the Sangha before an appropriate forum. Petitioner is always at liberty to challenge the bye-laws and thereafter he can get appropriate reliefs at that stage.
27. One more vital aspect which needs to be looked into is that the Joint/General Body Meeting of the Sangha was held on 24.10.2016 and in the said meeting it has been decided to hold elections on 17.12.2017 by issuing calendar of events and admittedly, the said meeting was conducted by issuing the written communication/notice to all the members including the petitioner, who is also one of the members. When he is a member and is aware of the fact that the meeting is scheduled to be held on 24.10.2016 for the purpose of declaring the election, either in the earlier meeting or subsequent meeting, which was held on 24.10.2016, or subsequently he could have raised the said issue. Keeping silent over the said aspect, after the issuance of calendar of events on 13.09.2017, the petitioner filed the present writ petition on 30.11.2017 even not immediately after the issuance of calendar of events. This conduct of the petitioner is not fair and appreciable. It is the contention of the petitioner that the letters have been issued by the Joint Director of Co-operative of Societies for reservation of one post for SC and one post for ST members. When bye-laws do not provide for reservation, the letter will not ripen into a right to the petitioner or give any right to any of the members of the Sangha nor to the general public at large to challenge the proceedings of the election announced as per Annexure-
J. When there are no mistakes in the calendar of events issued and no irregularities have been pointed out by the petitioner except the one (letter-Annexure-‘H’), which is the trump card of this writ petition and when the petitioner has also not established the fact that each post is reserved for SC and ST members under the bye-laws, no direction can be issued as prayed for.
28. Keeping in view the above said facts and circumstances, the writ petitioner has not made out any grounds to show that the calendar of events issued under Annexure-J suffers from any mala fides or that it is not in accordance with the procedure established in the bye-laws or violation of rules. When the calendar of events has been issued as per bye-laws of respondent No.1-Sangha, no other mala fides, arbitrariness and unreasonableness has been stated with reference to issuance of calendar of events as per Annexure-J. In the absence of any such material, no direction can be issued either to quash the calendar of events or to issue fresh calendar of events by providing reservation for SC/ST member as prayed.
29. No doubt, this Court by way of an interim order has stayed the election. But, it is needless to state that pending hearing of the writ petition the date given in this behalf for the purpose of holding further proceedings has been stalled, but this Court can direct to proceed with as per the calendar of events issued already from the stage where it has been stopped by giving a limited/stipulated days for further proceedings. This proportion of law has been upheld by a Division Bench decision of this Court in W.A. No.200250/2016 C/w W.P.No.200098/2016, dated 30.03.2017, of which, I am (B.A. PATIL, J.,) a member.
30. As discussed by me above, the process of elections started should not be stalled by the Courts by its interference and no election will be completed without further order of the Court. When the bye-laws do not provide any scope for reservation and the calendar of events have been issued in accordance with the bye-laws, then under such circumstances, this Court cannot grant prayers as prayed.
31. I therefore, dispose of the writ petition with a direction to the Returning Officer to proceed by resuming from the stage at which the proceedings have been interrupted and to complete the proceedings as expeditiously as possible in accordance with the procedure and rules which were prevailing as on the date of issuance of the calendar of events. If the petitioner wants that reservation has to be made in this behalf, then he is at liberty either to move the Sangha to get the bye-laws amended as per the Act, or to obtain an order from the Government incorporating the said amendment in the bye-laws, or to approach an appropriate Court for seeking direction for incorporation of such things in the bye-laws if he is advised to do so.
In view of the discussion held by me above, writ petition is dismissed as devoid of merits. No order as to costs.
RHR/KMS-
Sd/- JUDGE