IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NOs.57979-57980 OF 2017 (CS EL/M) BETWEEN:
1. Mohammad Arif, S/o. Basheer Ahmad, Aged about 45 years, R/o. Siddapur, Taluk Gangavathi, District Koppal-583227.
2. Venkatesh, S/o. Savareppa, Aged about 48 years, R/o. Siddapur, Taluk Gangavathi, District Koppal-583227.
(By Sri. Raju Bhat, Adv.) AND:
1. State of Karnataka, Department of Co-operation, M.S. Building, Gate-2, Bengaluru-560 001, Represented by its Secretary.
2. Registrar of Co-operative Societies, No.1, Aliasker Road, Bengaluru-01.
3. The Returning Officer, Primary Agricultural Co-operative Society, Siddapur, Taluk Gangavathi, District Koppal-583227.
... Petitioners 4. Chairman, Primary Agricultural Co-operative Society, Siddapur, Taluk Gangavathi, District Koppal-583227.
(By Sri. Umesh Murthy T.M., HCGP) ... Respondents These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying quash election process as per Calender of events issued by the R-3 DON 31.10.2017 a true copy of which is produced at Annexure ‘A’ and direct the R-3 and 4 to issue fresh calendar of events and voters list in compliance with circular issued by the R-1 & 2 (Annexure‘D’).
These writ petitions coming on for Preliminary Hearing this day, the court made the following:
ORDER The petitioners filed the present writ petitions for a writ of certiorari to quash election process as per the calendar of events issued by the 3rd respondent dated 31.10.2017 vide Annexure ‘A’ and writ of mandamus to direct Respondent Nos.3 and 4 to issue fresh calendar of events and voter list in compliance of the circular dated 04.08.2015 as per Annexure ‘D’.
2. It is the case of the petitioners that they are the members and shareholders of the 4th respondent/ Co-operative Society bearing Account Nos.917 and 443 respectively. According to the petitioners, there are 1246 members in the 4th respondent/Society who are eligible for voting in the election and the term of office bearers of the Society has expired and as such the 3rd respondent is appointed as Returning Officer for the purpose of conducting election and on the strength of the same, he has issued calendar of events to conduct fresh election for the purpose of electing new office bearers to the Society. Accordingly, as per Annexure ‘B’, a draft voters’ list was prepared on 04.11.2017.
3. It is further case of the petitioners that they are the active members of the Society and participated in the affairs of the Society from more than five years and they have also attended General Body meetings of the Society every year and eligible to exercise their votes in the election of the Society. The things stood thus, in the year 2017 the term of office bearers of the Society came to an end. Therefore, the 3rd respondent is empowered to conduct fresh election to the Society. As such that on 31.10.2017, the 3rd respondent issued calendar of events by fixing the date of election as 24.12.2017. It is also contended that after issuance of calendar of events, on 13.12.2017, the 3rd respondent issued final voters’ list of defaulters as well as non-defaulters. In so far as the non- defaulters are concerned, 38 members out of 1246 members are held to be eligible for voting in the election. Therefore, the petitioners make a representation to the 3rd respondent as per Annexures ‘E’ and ‘F’ sought to permit them to participate in the election. In spite of the same, they have not rectified the voters’ list. Therefore, the petitioners are before this Court for the relief sought for.
4. I have heard the learned counsel for the parties to the lis.
5. Sri. Raju Bhat, learned counsel for the petitioners contended that the impugned action of the 3rd respondent issuing the calendar of events on 31.10.2017 without rectifying the voters’ list is erroneous, contrary to the material on record. He would further contend that though the petitioners are eligible to participate in the election in terms of calendar of events issued on 31.10.2017, the respondents are not permitting the petitioners in view of the final voters’ list published on 13.12.2017. Therefore, they sought to quash the calendar of events issued by the 3rd respondent on 31.10.2017 and issue direction to the 3rd and 4th respondents to issue fresh calendar of events and voters’ list in compliance of the Circular dated 04.08.2015 issued by Respondent Nos.1 and 2 as per Annexure ‘D’.
6. Per contra, Sri. Umesh Murthy T.M., learned High Court Government pleader sought to justify the impugned action of the respondents and contended that once the calendar of events is issued, this Court cannot interfere. Admittedly in the present case, as long back as on 31.10.2017, calendar of events is issued, election process already taken place from 09.12.2017. Therefore, the only remedy to the petitioners to raise dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959.
7. Having heard the learned counsel for the parties. It is not in dispute that the term of the 4th respondent has expired and the Society is due for election. Accordingly, the calendar of events issued on 31.10.2017 by the 3rd respondent and the Election Officer has published draft voters list of the 4th respondent/Society on 04.11.2017. After inviting the objections, has published the final voters’ list on 13.12.2017 and the same is certified by the Verifying Authority. Though the learned counsel for the petitioners submit that the voters’ list published as per Annexure ‘C’ is defective and not in accordance with the circular dated 04.08.2015 issued by the Government, the fact remains that, once the calendar of events issued for the election, this court cannot interfere in the election process in view of Article 243-O of the Constitution of India, which reads as under:
243-O. Bar to interference by courts in electoral matters- Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
8. Admittedly, in the present case, when the calendar of events issued on 31.10.2017 and the election is already set in motion, this court cannot interfere with the election process in view of the dictum of the N.P. PONNUSWAMI Vs. RETURNING OFFICER, NAMAKKAL reported in AIR 1952 SC 64, while considering the interference in election matters, has held as under:
“9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the high Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and an other after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
12. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willies J. in Wolver Hampton New Water Works Co. v. Hawkesford, (1859) 6 C.B. (N.S.) 336, at p.356 in the following passage:
“There are three classes of cases in which a liability may be established founded upon statute, one is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the right to sue merely, but provided no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to”.
The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd, (1919) A.C. 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago .vs Gordon Grant & Co., 1935 A.C. 532 and Secretary of State v. Mask & Co., 44 cal. W.N. 709; and it has also been held to be equally applicable to enforcement of rights (see Hurduttrai v. Off Assignee of Calcutta, 52 cal. W.N. 343, At p.349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage.
13. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This argument however is completely shut out by reading the Act alongwith Article 329(b). It will be noticed that the language used in that article and in S.80 of the Act is almost identical, with this difference only that the article is preceded by the words “notwithstanding anything in this Constitution”. I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress.”
9. In the case of BODDULA KRISHNAIAH .vs.
STATE ELECTION COMMISSIONER reported in (1996)3 SCC 416, the Hon’ble Supreme Court while considering the interference of elections already set in motion, has held as under:
“11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.
12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.
10. In view of the above, the relief sought for by the petitioners cannot be granted by this Court when the election already set in motion. Accordingly, the petitioners have not made out any ground to quash the impugned calendar of events issued by the 3rd respondent to exercise any power under Article 243 of Constitution of India. Accordingly, the Writ petitions are dismissed.
It is needless to observe, it is always open for the petitioners to raise the dispute under the provision of Section 70 of the Karnataka Co-operative Societies Act, 1959.
SD/- JUDGE snc