IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 30th DAY OF MAY, 2018 BEFORE THE HON’BLE MR. JUSTICE B. A. PATIL WRIT PETITION NOS.57983-57984/2017(CS-EL/M) C/W WRIT PETITION NOS.111008-111009/2017(CS-EL/M) C/W WRIT PETITION NOS.111531-111534/2017(CS-EL/M) C/W WRIT PETITION NOS.101211 OF 2018 (CS-EL/M) AND WRIT PETITION NO.101338 OF 2018 WP.NOS.57983-57984/2017:
BETWEEN:
1. SRI DEEPAK PANDURANGSA MAJIKONDI S/O SRI PANDURANGSA MAJIKONDI, AGED ABOUT 50 YEARS, OCC: BUSINESS, R/O. SAI GARDENS, BHAVANINAGAR, HUBBALLI – 580 028.
CHAIRMAN OF SAHASRARJUNA SEVA KALYANA CO-OP. BANK LTD., HUBBALLI – 580 028.
2. SRI N.N.KHODE S/O SRI NAGENDRASA KHODE, AGED ABOUT 60 YEARS, LAKSHMINAGAR, GOKUL ROAD, HUBBALLI – 580 028, EX-CHAIRMAN SAHASRARJUNA SEVA KALYANA CO-OP. BANK LTD., HUBBALLI – 580 028. …PETITIONERS (BY SRI HARSHA DESAI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, VIDHANA SOUDHA, BENGALURU – 560 001.
2. THE JOINT DIRECTOR OF CO-OPERATIVE SOCIETIES URBAN BANK CELL, NO.1, ALI ASKAR ROAD, BENGALURU – 560 052.
3. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES DHARWAD DISTRICT, DHARWAD, AND ADMINISTRATOR, SAHASRARJUNA SEVA KALYANA CO-OP. BANK LTD., HUBBALLI – 580 028.
4. THE RETURNING OFFICER SAHASRARJUNA SEVA KALYANA CO-OP. BANK LTD., HUBBALLI AND ARCS/RECOVERY OFFICER/ KSU BANKS FEDERATION HUBBALLI REGION DOLLARS COLONY, HUBBALLI – 580 028.
5. THE SAHASRARJUNA SEVA KALYANA CO-OP. BANK LTD., HUBBALLI – 580 028 BY ITS MANAGER/C.E.O. …RESPONDENTS (BY SRI ANTHONY R.RODRIGUES, AGA FOR R1 TO R3 SRI HEMANTHKUMAR L.HAVARAGI, ADVOCATE FOR R4 SRI RAJASHEKAR BURJI, ADVOCATE FOR R5 SRI S.H.MITTALKOD, ADVOCATE FOR PROP.R6 TO R8 SRI GURUDEV GACHCHINAMATH, ADVOCATE FOR PROP. R6 TO R14 SRI K.L.PATIL AND SRI S.S.BETURMATH, ADVOCATES FOR PROP.R6 AND R8) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.12.2017 DIRECTING APPOINTMENT OF THE DY.DIRECTOR OF CO-OP., SOCIETIES, DHARWAD DISTRICT, DHARWAD AS ADMINISTRATOR TO RUN THE DAY TO DAY ADMINISTRATION OF THE R5 SOCIETY PASSED BY THE R2, BEING ARBITRARY, ERRONEOUS AND OPPOSED TO LAW, EQUITY AND JUSTICE VIDE ANNEXURE-N ETC., WP.NOS.111008-111009/2017: BETWEEN:
1. PRABHAKAR RAMACHANDRARAO KABADI AGED ABOUT 62 YEARS, OCC:BUSINESS, R/O:BANASHANKRAI EXTENSION, VIDYA NAGAR, HUBBALLI.
2. RAJENDRA NAGOSA JADI AGED ABOUT 53 YEARS, OCC:BUSINESS, R/O: HIREPETH, HUBBALLI. …PETITIONERS (BY SRI S.H.MITTALKOD, ADVOCATE) AND:
1. THE RETURNING OFFICER THE SAHASRARJUNASEVA CO-OPERATIVE BANK LTD., HUBBALLI AND A.R.C.S. AND RECOVERY OFFICER, K.S.U.BANKS FEDERATION, HUBBALLI REGION, DOLLARS COLONY, HUBBALLI.
2. THE SAHASRARJUNASEVA CO-OPERATIVE BANK LTD., HUBBALLI BY ITS MANAGER.
3. *CHIEF EXECUTIVE OFFICER ADMINISTRATION BODY OF THE SAHASRARJUNASEVA CO-OPERATIVE BANK LTD., HUBBALLI. RESPONDENTS *AMENDED AS PER ORDER DATED 17.11.2017.
(BY SRI HEMANTHKUMAR L.HAVARAGI, ADVOCATE FOR R1 SRI RAJASHEKAR BURJI, ADVOCATE FOR R2 AND R3 SRI ARAVIND D.KULKARNI, ADVOCATE FOR PROP. FOR R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE CALENDAR OF EVENTS ISSUED ON 02.11.2017 BY THE FIRST RESPONDENT PRODUCED AT ANNEXURE-D. ISSUE WRIT IN THE NATURE OF MANDAMUS TO THE RESPONDENTS TO CONDUCT ELECTIONS AS PER THE BYELAWS AFTER NOTIFYING THE FRESH VOTERS LIST PURSUANT TO THE ORDER PASSED BY THE J.R.C.S. BENGALURU IN APPEAL NO.RCS/UBC- 3/SEC.70/237/2017-18 PRODUCED AT ANNEXURE-E.
WP.NOS.111531-111534/2017: BETWEEN:
1. VASANT S/O NARAYANSA LADAWA, AGED ABOUT 65 YEARS, OCC:BUSINESS, R/O: NO.47, 2ND FLOOR, EUREKA CENTER, KOPPIKAR ROAD HUBBALLI, DISTRICT:DHARWAD.
2. VITTAL S/O PARASURAM LADWA, AGED ABOUT 59 YEARS, OCC:BUSINESS, R/O: JAI BHARAT CIRCLE, KAMARIPETH, HUBBALLI, DISTRICT: DHARWAD.
3. ANANT S/O MADHUSA BADDI, AGED ABOUT 66 YEARS, OCC:BUSINESS, R/O: 13, AZAD ROAD, CBT HUBBALLI, DISTRICT: DHARWAD.
4. KRISHNATH S/O NARAYANASA KATIGAR, AGED ABOUT 58 YEARS, OCC:BUSINESS, R/O: CROSS NO.3, KAMARIPETH, HUBBALLI, DISTRICT: DHARWAD. …PETITIONERS (BY SRI K.L.PATIL AND SRI S.S.BETURMATH, ADVOCATES) AND:
1. THE CO-OPERATIVE ELECTION COMMISSION BY ITS COMMISSIONER, 3RD FLOOR, SHANTINAGAR, TTMC, ‘A’ BLOCK, SHANTINAGAR, K.H.ROAD, BENGALURU – 27.
2. THE ELECTION OFFICER BELAGAVI REGION AND ADDL.
REGISTRAR OF CO-OPERATIVE SOCIETIES, BUILDING OF MALAPRABHA AND GHATAPRABHA SCHEMES, RANI CHENNAMMA CIRCLE, BELAGAVI – 590 002.
3. THE RETURNING OFFICER THE SAHASRARJUNA SEVA CO-OPERATIVE BANK LTD., HUBBALLI AND A R C S AND RECOVERY OFFICER, K S U BANKS, FEDERATION, HUBBALLI REGION, DOLLARS COLONY, GOKUL ROAD, HUBBALLI, DISTRICT:DHARWAD.
4. THE SAHASRARJUNASEVA CO-OPERATIVE BANK LTD., HUBBALLI, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, DAJIBANPETH, HUBBALLI, DISTRICT:DHARWAD.
…RESPONDENTS (BY SRI HEMANTHKUMAR L.HAVARAGI, ADVOCATE FOR R1 TO R3 SRI RAJASHEKAR BURJI, ADVOCATE FOR R4 SRI V.M.SHEELVANT, ADVOCATE FOR PROP.R5 TO R15) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.11.2017 PASSED BY THE RESPONDENT NO.3 PRODUCED AS ANNEXURE-G. TO DECLARE THAT THE ACTION OF RETURNING OFFICER, IN POSTPONING THE ELECTION SCHEDULED TO BE CONDUCTED ON 19.11.2017 IS ILLEGAL NULL AND VOID. TO PROCEED WITH THE ELECTION PROCESS FROM WHERE IT WAS STOPPED.
WP.NOS.101211/2018 & 101338/2018: BETWEEN:
1. SRI ARJUN DEVENDRSA ATHANI AGED ABOUT 58 YEARS, OCC:BUSINESS, R/O NO.37, KAMARI PETH, HUBBALLI.
2. SRI PRAKASH MOTHILALSA BURBURE AGED ABOUT 45 YEARS, OCC:BUSINESS, R/O: SORBADMATH GALLI, HUBBALLI.
…PETITIONERS (BY SRI SUNIL DESAI AND SRI PRAKSH ANDANIMATH, ADVOCATES) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATIVE, M.S.BUILDING, VIKASA SOUDHA, BENGALURU – 01.
2. THE CO-OPERATIVE ELECTION COMMISSION BY THE COMMISSIONER, 3RD FLOOR, SHANTINAGAR, TTMC ‘A’ BLOCK, SHANTINAGAR, K.H.ROAD, BENGALURU – 27.
3. THE ELECTION OFFICER BELAGAVI REGION AND ADDL.REGISTRAR OF CO-OPERATIVE SOCIETIES, BUILDING OF MALAPRABHA AND GHATAPRABHA SCHEMES, RANI CHENNAMMA CIRCLE, BELAGAVI – 590 002.
4. THE RETURNING OFFICER THE SAHASRARJUNA SEVA CO-OPERATIVE BANK LTD., HUBBALLI AND ARCS AND RECOVERY OFFICER, K S U BANKS, FEDERATION, HUBBALLI REGION, DOLLAR COLONY, GOKUL ROAD, HUBBALLI, DISTRICT:DHARWAD.
5. THE SAHASRARJUNA SEVA CO-OPERATIVE BANK LTD., HUBBALLI, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, DAJIBANPETH, HUBBALLI, DISTRICT:DHARWAD.
6. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, URBAN BANK CELL, NO.1, ALI ASKAR ROAD, BENGALURU – 52.
7. SRI SATISH G.MEHARWADE AGED ABOUT 62 YEARS, OCC:BUSINESS, R/O PLOT NO.40, AMBIKA NAGAR, HUBBALLI.
8. SRI NEELAKANTH PREMANANTHASA JADI AGED ABOUT 63 YEARS, OCC:BUSINESS, R/O SHRIKRISHNA KALYANMANTAPPA, DESHPANDE NAGAR, HUBBALLI.
9. SRI MANJUNATH SOMANATHASA DALBANJAN AGED ABOUT 36 YEARS, OCC:BUSINESS, R/O ARVIND NAGAR, HUBBALLI.
10. SRI GANESH VISHNU SHALAGAR AGED ABOUT 42 YEARS, OCC:BUSINESS, R/O CHANPATHE MAIN ROAD, OLD HUBBALLI.
11. SRI NARAYAN DAYANAND PAWAR AGED ABOUT 30 YEARS, OCC:BUSINESS, R/O NO.54, GANDHI ONNI, OLD HUBBALLI.
12. SRI PRABHAKAR RAMCHANDRA KADABI, AGED ABOUT 62 YEARS, OCC:BUSINESS, R/O BANASHANKARI EXTENSION, VIDHYANAGAR, HUBBALLI.
13. SRI RAJENDRA NAGOSA JED AGED ABOUT 53 YEARS, OCC:BUSINESS, R/O HIREPATH, HUBBALLI.
14. SRI GAJANAN NAGOSA NIRANJAN AGED ABOUT 62 YEARS, OCC:BUSINESS, R/O GANESH PETH, WADDAR ONNI, HUBBALLI.
15. SRI LAXMANSA NAGOSA TRIMAL (CHAVAN) AGED ABOUT 59 YEARS, OCC:BUSINESS, R/O SIDDESHWAR COLONY, VIKAS NAGAR, HOSUR, HUBBALLI.
16. SRI JITTURI BHASKAR NARYAN AGED ABOUT 52 YEARS, OCC:BUSINESS, R/O DAJIBAN PETH, HUBBALLI.
17. SRI SHRIKANT RAMASA HABIB AGED ABOUT 54 YEARS, OCC:BUSINESS, R/O H.NO.1516, SUVIDHA COLONY, KESHWAPUR,HUBBALLI.
...RESPONDENTS THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE INTERIM ORDER BEARING NO.RCS/UBC- 3/SECTION 70/237/2017-18 DATED 16.11.2017 PASSED BY THE 6TH RESPONDENT AS PER ANNEXURE-J, AS ILLEGAL AND VOID. DIRECT THE 5TH RESPONDENT TO CONTINUE THE ELECTION PROCESS FROM THE STAGE OF FIXING THE DATE OF VOTING AND DECLARING THE RESULT OF THE VERY SAME DAY.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESEVED FOR JUDGMENT ON 20.02.2018 COMING ON THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
O R D E R Writ Petitions No.57983-57984 of 2017 have been filed by the petitioners praying to issue a writ of certiorari or any other writ by quashing the order dated 13.12.2017 passed by 2nd respondent – The Joint Director of Co-operative Societies directing appointment of the Deputy Director of Co-operative Societies as Administrator to run the 5th respondent – Society i.e. The Sahasrarjuna Seva Kalyana Co- operative Bank Ltd., Hubli, as per Annexure-N and also to quash the order dated 18.11.2017 passed by 4th respondent – The Returning Officer postponing the election as per Annexure-M and also to issue direction to continue to conduct and proceed with the election process from the stage where it has stopped as notified in the Calendar of Events dated 2.11.2017 in accordance with the Act and Rules and the Bye-laws as per Annexure-D.
Writ Petition Nos.111008-009 of 2017 have been filed by the petitioners praying to issue writ in the nature of certiorari or any other appropriate writ, direction and to quash the Calendar of Events issued on 2.11.2017 by the first respondent as per Annexure-D and also issue writ in the nature of mandamus to the respondents to conduct the elections as per the byelaws after notifying the fresh voters list pursuant to the order passed by the Joint Registrar of Co-operative Societies as per Annexure-E.
Writ Petition Nos.111531-111534 of 2017 have been filed by the petitioners praying to issue direction in the nature of certiorari quashing the impugned order dated 18.11.2017 passed by respondent No.3 as per Annexure-G and to declare that the action of the Returning Officer in postponing the election scheduled to be conducted on 19.11.2017 as illegal, null and void and also issue writ of mandamus to proceed with the election process from where it was stopped.
Writ Petition Nos.101211 and 101338 of 2018 have been filed by the petitioners praying to issue directions in the nature of certiorari and to quash the interim order dated 16.11.2017 passed by the 6th respondent - The Joint Registrar of Co-operative Societies as per Annexure-J as illegal and void and also direction in the nature of mandamus directing the 5th respondent Sahasrarjuna Seva Co-operative Bank Ltd. to continue the election process from the stage of fixing the date of voting and declaring the result on the very same day.
2. It is the contention of the learned counsel Sri.Harsha Desai, who is appearing for the petitioners that 1st petitioner is the Chairman and 2nd petitioner is the Ex-chairman of respondent No.5 – Society. They are very much interested in the welfare of the 5th respondent – Society. The learned counsel by referring to Article 243-ZK of Chapter–IXB of the Constitution of India submitted that it is mandatory to hold election of the Members of the Board before expiry of the term of the existing Board so as to ensure that newly elected members assume office immediately on the expiry of the term of office of the outgoing members. It is further submitted that Section 20(2)(a-iv) and (a-v) of the Karnataka Co- operative Societies Act, 1964 amended and it came into force on 11.2.2013. He further submitted that byelaws of the Society were also amended in pursuance of the amendment to the Constitution as per Annexure-A and was given effect from 6.2.2014. He further submitted that last election was held on 14.12.2012, as five years period expires on 13.12.2017. He further submitted that by keeping in view the said facts, information was given to the election authorities to conduct the elections on 24.4.2017. By virtue of the said intimation the election process was started on 1.9.2017 by appointing the Returning Officer. He further submitted that thereafter the process of election was started, but no objections were filed by any of the members of the society to the Voters list. Calendar of Events issued in connection with holding of the election, now the other members cannot contend that the voter list is not in accordance with rules and there is violation of the rules. He further submitted that as per Rule 14G of the Karnataka Co-operative Societies Rules , 1960 (hereinafter called as ‘Rules) procedure has been followed and as per Annexure-G two women candidates were selected unanimously and the said selection has not been challenged. By relying upon the said aspect he further submitted that the writ petitions filed to quash the elections by ineligible candidates are not maintainable. He further submitted that once the Calendar of Events were issued, this Court cannot interfere with such process until and unless some malafides are attributed in the process of election. In order to substantiate the said contention he relied upon a decision in the case of Shaji K. Joseph Vs. V. Viswanath and Others reported in (2016) 4 SCC 429. He further submitted by relying upon the decision in the case of Belthangadi Taluk Rubber Belegar Marat and Samskarn Sahakar Sangat Niyamit Ujre and Others Vs. State of Karnataka and Others reported in 2015(3) KCCR 2423 that, the existing Board shall have to continue. The continuance of the existing Board is not violative of Article 243-ZJ of the Constitution. He further submitted that by conjoint reading of Article 243-ZJ, 243-ZK and 243-ZL show that the term of the Board is five years from the date the members of the Board assume office and the State Act is not providing to hold the election before expiry of the term of the Board. In that light, the Board has to continue till the newly elected Board assumes the office any thing contrary to the above said provision will defeat the purpose and object of part-IXB of the Constitution. He further submitted that Section 28A (4) and (5) of the Act is not applicable since there was no delay by the Society to hold the elections. He further submitted that the appointment of the Deputy Director of Co-operative Societies by the Joint Director of Co-operative Societies as per Annexure-N is in violation of the said provisions and the same is liable to be quashed. He further submitted that the order dated 18.11.2017 postponing the election being arbitrary, erroneous and opposed to law and the same has to be quashed as per Annexure-M and further prayed to continue the election process from the stage where exactly it has been stopped. On these grounds he prayed for allowing the writ petitions.
Per contra, the learned Additional Government Advocate appearing on behalf of respondents No.1 to 3 by justifying the order passed by respondent No.2 dated 13.12.2017 submitted that the Joint Director has rightly appointed Deputy Director of Co-operative Society as an Administrator in pursuance of Annexure-N by noticing the fact that the final voters list is not containing many members and many members have been dropped and the said order has been passed in pursuance of the order passed by the Hon’ble High Court in Writ Petitions No.111008- 111009 of 2017 dated 17.11.2017. There are no good grounds made out by the petitioners to allow the writ petitions and he prays for dismissal of the writ petitions.
3. The learned counsel appearing on behalf of respondents No.4 and 5 submitted that the election process has been started in accordance with the byelaws and there are no good grounds to interfere with the process of election which has been already started. This Court cannot hold the elections once the process has been started. On these grounds he prayed for dismissal of the writ petitions.
4. The learned counsel appearing on behalf of respondents No.6 to 14 vehemently argued by contending that Section 17 of the Act clearly indicates that who are the members disqualified for the election and disqualification has to be made only with reference to Section 17 of the Act, but the said procedure has not been followed and no opportunity has been given for disqualified members to put-forth their plea. The Election Officer has not followed the procedures as contemplated under Rule-13 of the Rules. The said rule safeguards the members. As per the said rule each member should know the reason for disqualification, but in the instant case no reasons have been stated while disqualifying and the Society has not furnished the correct information to the Joint Registrar of Co-operative Societies. In that light the Court has passed an order to give voting right as per the order dated 17.11.2017. He further submitted that as per Annexure-C right of the members has been denied. It can be denied only after three years after the said amendment is incorporated into the Societies Byelaws. This procedure has not been followed at the time when the members were disqualified. He further submitted that by virtue of Section 70 of the Act the Joint Registrar of Co-operative Society has passed the order and the said Section refers to which are the disputes referred to the joint Registrar of Co-operative Society and in pursuance of the same respondent No.2 has passed the order by following the order dated 17.11.2017 and an Administrator has been appointed as per Annexure-R5. He further submitted that by amending the bye-laws the members have been deprived of their valuable rights and there would not be any fair election to the said Society and as such there writ petitions are liable to be dismissed.
5. The learned counsel Sri K.L.Patil for impleading applicants/proposed respondents submitted that the Returning Officer has to perform his functions in an objective manner and to conclude the elections as per the Calendar of Events. If there is any illegality in conducting the elections or in preparation of the Voters list, it is always open for the objectors to challenge the elections and without there being any substantial grounds election cannot be postponed. In order to substantiate his contention he relied upon a decision in the case of Kumar Vs. State of Karnataka reported in LAWS(KAR) 2008 10 70. On these grounds he prayed for dismissal of the writ petitions.
6. At this juncture I feel it relevant to state that this Court on 19.12.2017 passed an interim order staying the operation of order dated 13.12.2017 and subsequently same is continued till date. Even it is also not in dispute that as per the Calendar of Events at Annexure-D the Returning Officer has to declare the Calendar of Events on 3.11.2017, filing of the nomination should starts on 3.11.2017, last date for receiving the nomination was fixed on 11.11.2017, date of the scrutiny of the nomination was fixed on 12.11.2017 and on the same day the Returning Officer has to prepare the list of the candidates who are eligible to the said elections and the date for withdrawal of the nomination was fixed on 13.11.2017 and on the same day the Returning Officer has to finalize the list of candidates who remained in the contest of the elections and on the same day the Returning Officer has to give the symbols to the candidates if it is required and the date of voting was fixed on 19.11.2017 from 9.00 a.m. to 4.00 p.m. and on the same day the counting was also fixed and the announcement of the results. This fact has not been disputed by any of the writ petitioners.
7. Before considering the prayers made in each of the writ petitions, I feel it just and proper to mention here that it is well established principles of law laid down by the Hon’ble Apex Court as well as by 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 Court, possibly no elections would be completed without the Court orders. It is also the settled principles of the law 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 quoted supra and also in the case of Pt. Ram Nath Kalia Vs. Election Commission of India and another reported in AIR 1957 SC 694. For the purpose of brevity, I quote paragraph No.15 of the said decision which 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.”
8. This Court by approving the said proposition of law in the case of L. Ramakrishnappa Vs. Presiding Officer reported in ILR 1991 KAR 4421 has observed as mentioned below.
“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.”
9. In the above said decisions it is further observed that the said aspects are the questions of the fact and the said questions of fact cannot be decided by the Court by exercising the power under Article 226 of the Constitution of India.
10. Keeping in view the above said proposition of law, let me consider the facts of the present case on hand. It is an admitted fact that the election to the 5th respondent – Society has to be conducted as per the bye-laws and the procedures laid down therein. It is trite, if the statute or the bye-law prescribes that if 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 are at paragraphs 31 and 32 of the said judgment, they read as under:.
“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:
“31. 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.”
11. It is the first and foremost contention of the learned counsel for the petitioners that as per Article 243ZJ, 243ZK and 243ZL of the Constitution of India the election of the Board shall be conducted before expiry of the terms of the Board and in pursuance of the said constitutional mandate bye-laws have also been amended by the Society as per Annexure-A and was given effect to from 6.2.2014. As such, the election process started on 1.9.2017 is justifiable and the appointment of the Administrator and postponement of the election is not justifiable. For the purpose of brevity I quote Articles-243ZJ, 243ZK, 243ZL and 243ZT of the Constitution of India, which reads as under:
“243ZJ. Number and term of members of board and its office bearers: - (1) The Board shall consist of such number of Directors as may be provided by the legislature of a State, by law:
Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one:
Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.
(2) The term of office of elected members of the board and its office-bearers shall be five years from the date of election and the term of office-bearers shall be coterminous with the term of the board:
Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term.
(3) The Legislature of a State shall, by law, make provisions for co-option of persons to be members of the board having experience in the field of banking, management, finance or specialization in any other field relating to the objects and activities undertaken by the co- operative society, as members of the board of such society:
Provided that the number of such co-opted members shall not exceed two in addition to twenty-one directors specified in the first proviso to clause (1):
Provided further that such co-opted members shall not have the right to vote in any election of the co-operative society in their capacity as such member or to be eligible to be elected as office-bearers of the board:
Provided also that the functional directors of a co-operative society shall also be the members of the board and such members shall be excluded for the purpose of counting the total number of directors specified in the first proviso to clause (1).
243ZK. Election of members of board.- (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co- operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election.
243ZL. Supersession and suspension of board and interim management.- (1) Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months:
Provided that the board may be superseded or kept under suspension in case-
(i) of its persistent default; or (ii) of negligence in the performance of its duties; or (iii)the board has committed any act prejudicial to the interests of the co-operative society or its members; or (iv) there is a stalement in the constitution or functions of the board; or (v) the authority or body as provided by the Legislature of a State, by law, under clause(2) of article 243ZK, has failed to conduct elections in accordance with the provisions of the State Act:
Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or loan or financial assistance or any guarantee by the Government:
Provided also that in case of a co-operative society carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 (10 of 1949) shall also apply:
Provided also that in case of a co-operative society, other than a multi-State co-operative society, carrying on the business of banking, the provisions of this clause shall have the effect as if for the words “six months”, the words “one year” had been substituted.
(2) In case of supersession of a board, the administrator appointed to manage the affairs of such co-operative society shall arrange for conduct of elections within the period specified in clause (1) and handover the management to the elected board.
(3) The Legislature of a State may, by law, make provisions for the conditions of service of the administrator.
243ZT. Continuance of existing laws.- Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.
12. For the purpose of brevity I will refer to the bye-laws of the Society at Chapter-VI which deals with admission, qualification, secession, rights and liability of the members, which reads as under:
Admission of Members:
1) The following shall be eligible for admission as members of the bank.
Any individual competent to contract under Section 11 of the Indian Contract Act, 1872 and who is in need of the services of the bank and who is residing in the area of operation of the bank and such other person as defined in bye-law no.4.21.
2) No co-operative society registered under the Act shall be eligible to become a member of the bank.
3) Qualifications for Admission:
The following are the qualifications for admission as members of the bank.
An individual who is above 18 years of age and who can enter into legal contract and any person who resides in the area of operation of the bank, who is in need of the services of the bank, who is not a member of any other co-operative bank and who is not disqualified under Section 17 of the Act shall have applied in writing together with payment of the value of atleast Ten shares along with share fee of Rs.10/- per share and admission fee of Rs.25/.
4) No person can exercise the rights of membership unless he has made such payments to the bank in respect of membership or has acquired such interest in the bank as may be specified in the bye-laws.
19) Rights and Responsibilities of a Member:
1. A member of the bank shall have a right to – a) Know about the affairs of the bank.
b) Participate and Vote in the general meeting of the bank.
c) Participate, contest and vote in the election of the directors.
d) Have access to the books, information and accounts of the bank kept in regular transaction of its business with him.
e) Get loans and advances as per the rules of the bank subject to the regulations of the Reserve Bank.
f) Get dividend on distribution of profit.
g) Get a copy of the statutory audit report.
h) Get a copy of the statutory enquiry or inspection report, if any.
i) Suggest action to be taken for rectification of the defects and remedying of the irregularities pointed out in the audit or inquiry or inspection reports.
j) Get copies of the notes, information and reports relating to every subject on the agenda of the notice of the general meeting (including the proceeding of the previous general meeting) and get copies of the notes, information and reports that are furnished to the members at the time of conducting general meeting.
2) If a member has defaulted in the repayment of loan or payment of any other dues, such member shall not have a right to vote in the general meeting and to participate, contest and vote in the election of the directors.
3) Every member of the bank shall participate in the management of the Bank-
a) By attending three out of the last five annual general meeting of the bank.
b) By utilizing every year such minimum services/facilities offered by the bank as specified in the bye-laws.
Provided that, if a member fails to utilize such minimum services/facilities for three consecutive years or fails to attend the minimum number of annual general meetings, he shall lose his right to vote in the annual general meeting and to vote and contest in the election of the directors.”
13. By going through Article- 243ZJ to ZT and on reading the object of part-IXB of the Constitution of India, it makes it clear that the said amendment has been inserted by the Constitution (97th Amendment Act of 2011) and the same came into force on 15.2.2012 to provide for autonomous functioning, democratic member-control and uninterrupted professional management of Co-operative Societies by the Body elected to Administer the Society without any interference by the State or any other Agency. It also makes it clear that before the expiry of the term of the exiting Board it is mandatory on the part of the elected members to hold the election to ensure that the newly elected members of the Board will assume office immediately on expiry of the term of out going Board.
14. As could be seen from Annexure-A amendment to bye-laws have been carried out in pursuance of Chapter-IXB of the Constitution and the same have been submitted to the Joint Director of Co- operative Societies, Bengaluru as per the letters dated 28.1.2014 and 3.2.2014 and the said amendment has been approved on 6.2.2014 and same has been intimated to respondent No.5 –Co-operative Bank on 17.2.2014 and accordingly the bye-laws have also been amended. The said bye-laws have not been challenged by any of the members of the Society.
15. On close reading of the bye-laws, it makes it clear that if a member fails to regularize such minimum service for three consecutive years or fails to attend the minimum numbers of Annual General Body Meeting, he shall lose right to vote and contest the election of Directors. It is the contention of the learned counsel for respondent No.6 that Section 17 of the Act specifies the grounds for disqualification of the members. Only on those grounds they can be disqualified not otherwise. For the purpose of brevity, I quote Section 17 of the Act which reads as under:
“17. Disqualification for membership.- (1) No person shall be eligible for admission as a member of a co-operative society, if he,-
(a) has applied to be adjudicated an insolvent or is an undischarged insolvent; or (b) has been sentenced for any offence, other than an offence of a political character or an offence not involving moral turpitude, such sentence not having been reversed or the offence pardoned and a period of five years has not elapsed from date of expiry of the sentence.
(c) Carries on (xxxx) business of the kind carried on by such co-operative society:
(Explanation.- xxxx) (d) is already a member of a co- operative society carrying on business of the same kind as itself;
(e) is not eligible for membership under Section 16;
(f) is a paid employee of the society or of its financing bank; or (g) xxxx (2) If a member becomes subject to any of the disqualifications specified in (xxxx) sub-section (1), he shall be deemed to have ceased to be a member from the date when the disqualification was incurred.
[(2-A) If a member fails to fulfill his obligations as a member under the Act, rules or bye-laws, for a continuous period of three years, he shall, on the expiry of such period, cease to be a member.] [(3) If any question arises as to whether a member is deemed to have ceased or has ceased to be a member under sub-section (2) or (2-A), the Registrar may either suo mutu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question.] 16. On reading of Section 17 it speaks about the disqualification for the purpose of membership to the Co-operative Society, if any one of the grounds enumerated therein are satisfied, then he will be disqualified to be a member of the said society. But on close reading of the amendment made to the bye-laws as per Annexure-A it makes it clear that he must utilize the minimum services or facilities and he shall have a minimum deposit and must also avail the loan. The main object of mentioning the disqualification and minimum service or facilities is to encourage the members to actively participate in the development of the Bank or Society, but the grounds for disqualification which have been mentioned under Section 17 of the Act are general in nature and they must also be read conjointly along with the amended bye-laws. They are the general disqualifications and which are specific in nature. In that light, the contention taken up by the learned counsel for respondent No.6 that the disqualifications which has been made without following the procedures as contemplated under Rule 13 is not acceptable. Rule 13-D of the Act reads as under:
13-D. Preparation of electoral rolls and calendar of events. -(1) [xxxxx] Election Officer shall, after due verification, send a consolidated list of all co-operative societies in the district where elections are due at least 120 days before the date of expiry of the term of office of the boards to the Co-operative Election [Authority] indicating therein the following particulars.-
(a) the name and address of the society;
(b) number of elected directors of the board;
(c) the date of expiry of the term of office of the board;
(d) the proposed places where the elections are to be held or other particulars as required by the Co- operative Election [Authority].
(2) The Co-operative Election [Authority] shall, on receipt of such reports from the [Election Officer], containing the list of cooperative societies where elections are due, publish the calendar of events for the preparation of electoral rolls and the conduct of elections of the boards of the co-operative societies [xxxxx] indicating the name and address of each society [xxxxx].
[(3) The Election officer shall take steps for publication of voters list in the following manner, namely.-
(a) for publication of draft eligible electoral list, a list of defaulters, a list of members whose repayment falls due, before the election date clear fifty days;
(b) for calling objections, if any, calling upon the defaulter members to repay the amounts due to the co- operative societies on or before thirty clear days prior to the date of election;
(c) the scrutiny and verification of the voters list after payment by defaulters etc., clear twenty days before the date of election;
(d) for publication of final eligible voters list before fifteen clear days prior to the date of election.] [(4) It shall be the duty of every society to furnish correct information required by the Election Officer to enable him to approve the electoral rolls as directed by the Co-operative Election Authority.] (5) The chief executive of every co- operative society shall prepare (i) a draft list of the eligible members or representatives and delegates with right to vote, (ii) a list of members whose repayments will fall due before the date fixed for publication of final electoral roll, (iii) a list of defaulters, (iv) a list of other members or representatives and delegates who are not eligible to vote at a general election indicating the reasons for ineligibility memberwise on the basis of entries in the updated membership register specifying,-
(a) the name of the member or representative, the admission number, the name of the parent or husband and the address of such member or representative in the case of an individual member;
(b) the admission number, the name of the society, the name of the delegate proposed to represent the society in the case of the member society, and submit the said lists to the [Election Officer] along with the related books, records and documents and any other information as the [Election Officer] may require, at least sixty days before the date of election.
(6) The Co-operative Election [Authority] shall call upon the Chief Executive of the co-operative society to obtain from the member society, the name of an authorised member of the board of such society as a delegate, together with the resolution of the board of the said society and the specimen signature along with the photograph of the delegate duly attested and bearing the seal of the society and furnish all such information under sub- rule (5).
(7) The final electoral roll shall consist of the following,-
(a) all the individual members with right to vote in respect of a primary co-operative society; or (b) all the individual members and the delegates of the members societies with right to vote in respect of a secondary co-operative society; or (c) all the delegates of the member societies with right to vote in respect of a federal and an apex society.
(8) The copy of such electoral roll in respect of each society shall be kept open for inspection in the office of such society as also in the office of the [Election officer].
(9) The election calendar of events for general election of directors of the board shall provide for.-
(a) date of notification inviting nomination;
(b) last date for receipt of nomination;
(c) date and time for scrutiny of nomination;
(d) date and time for publication of list of validly nominated candidates;
(e) date and time for withdrawal of nomination papers;
(f) Date and time for publication list of contesting candidates;
(g) Date and time for allotment of symbols and publication of contesting candidates with symbols;
(h) Date and time of poll;
(i) Date and time of counting and declaration of results.
By going through the said provision it makes it clear that the said procedure has to be followed for preparation of electoral rolls and Calendar of Events. As per Annexure-D the Calendar of Events have been published on 2.11.2017 and the electoral roll was also published in this behalf and subsequently as per the calendar of events the eligible candidates list has been announced as per Annexures-E and F and two candidates were got selected unanimously as per Annexure-G. It is an admitted fact that the said election, voters list has not been challenged and it is also an admitted fact that as per Annexure-G two women candidates who have been elected unanimously is also not challenged in any of the writ petitions. When the said aspects have not been challenged, then under such circumstances, the contention taken up by the respondents as well the petitioners in this behalf is not maintainable and the same has been rejected.
17. It is the contention of the petitioners that the order dated 13.12.2017 appointing Deputy Director of Co-operative Society, Dharwad as an Administrator to administer the day to day administration of the 5th respondent Society is erroneous and opposed to law and equity. The said order was came to be passed by Joint Director of Co-operative Societies as per Annexure-N and it is the contention of the learned Additional Government Advocate that already the Administrator has taken up the charge and he is managing the office.
18. It is not in dispute that the term of office expires on 13.12.2017 and it is also an admitted fact that the elections were not held before the old Board period is over and the no new Board has come into existence. By virtue of time gap, the purpose and object of Chapter-IXB of the Constitution and the amendment carried out to the bye-laws has failed, now by virtue of removing the Administrator by quashing the order dated 13.12.2017, it is going to create a vaccum, now already the Administrator has taken the charge and a previous Board is not in existence and it is not functioning and no new elections were held to the posts. Then under such circumstances, the administration of the 5th respondent Society is going to be affected. The said aspect is also supported by Section 28 of the Act. 28A(4) and 28A(5) of the Act reads as under:
“28A(4): subject to the provisions of Sections 29-A and 39-A, the term of office of the members of the board shall save as otherwise five years from the date of election and they shall be deemed to have vacated office as such members of the board on the date of completion of the said term:
28-A(5): If the new board is not constituted under Section 29-A, on the date of expiry of the term of office of the board or if the elections are not held within the time-limits specified in Section 39-A, the Registrar or any other officer within whose jurisdiction the society is situated and who is authorised by the Registrar, shall be deemed to have assumed charge as Administrator and he shall, for all purposes function as such board of management. The Administrator shall, subject to the control of the Registrar, exercise all the powers and perform all the functions of the board of the co-operative society or any office bearer of the co-operative society and take all such actions as may be required, in the interest of the co-operative society.
19. As per Section 28A(4) the terms of office of the members shall be deemed to have vacated the office of the Board on the date of completion of the said term and as per Section 28A(5) if a new Board is not constituted on the date of expiry of the term of office and if elections are not held within the time limit specified in Section 39-A, the Registrar or any other Officer within whose jurisdiction the Society is situated and who is authorised by the Registrar shall be deemed to have assume charge as Administrator to manage the said administration.
20. As per Annexure-N though the order was came to be passed on 13.12.2017 and the term of office is also going to be expiring on 13.12.2017, but the fact remains that no new Board has been constituted by holding any elections, if no new Board is not constituted and if the elections are not held within the time limits, then the Registrar shall be deemed to have taken the charge as an Administrator for all purposes to manage the said Society. Though statutory power is also there, now by virtue of Annexure-N by order dated 13.12.2017 the Administrator has been appointed and he has also taken up the charge of the said Society. In this behalf also that there is no illegality or irregularity in appointing the Administrator.
21. Be that as it may. Though it is the contention of the learned counsel for the petitioners that the election process has been started before the term of expiry of the Board, but because of various reasons the election was not held, in my opinion the said position cannot be blame to anybody. It has happened only because of intervention of the Court. In that light also that the said order cannot be quashed.
22. The second contention taken up by the learned counsel for the petitioners is that the order dated 18.11.2017 as per Annexure-M passed by the Returning Officer postponing the election is arbitrary, erroneous and opposed to law.
23. As could be seen from Annexure-M the Returning Officer by relying upon the order of this Court dated 17.11.2017 has passed such order. The order dated 17.11.2017 reads as under:
“Respondents No.1 and 3 are hereby directed to conduct the election only after granting right of voting to the members as per the directions of the Joint Registrar of Co- operative societies, in order dated 16.11.2017.”
24. The said order has been passed by relying upon Annexure-E in Writ Petition No.111008/2017 passed by Joint Director of Co-operative Societies. Therein, it has been ordered that those candidates who are eligible and those who have not availed the services or benefits and whose names have been deleted have to be included in the list and they can also exercise the voting power. The said order which has been passed is also neither in consonance with the bye-laws of the Society nor as per the Chapter- IXB of the Constitution. By virtue of the said order, the order passed as per Annexure-M is not sustainable in law. In view of the ratio of the Hon’ble Apex Court to the effect that once Calendar of Events is issued, election cannot be stalled. In that light, the Returning Officer should have continued further process of election instead of passing such order. The order which has been passed in this behalf is erroneous and arbitrary and the same is not sustainable in law and the same is liable to be quashed and accordingly it is quashed.
25. Even as could be seen from the Writ Petition 111008/2017, the said writ petition has been filed by the writ petitioners to quash the Calendar of Events and to issue writ in the nature of mandamus to conduct the elections as per the bye-laws after notifying the fresh voters list pursuant to the order passed by the Joint Registrar of Co-operative Societies dated 16.11.2017 as per Annexure-E in the said writ petition. The order passed by the Joint Registrar of Co-operative Societies as per Annexure-E is erroneous and the same is not in accordance with law. When already the election process has been started by issuance of Calendar of Events and when the said voters list has not been challenged by any of the members, then under such circumstances the Joint Registrar of Co-operative Society ought not to have entertained the said petition and he could not have issued the interim order dated 16.11.2017 and basing upon the said order the order passed by this Court dated 17.11.2017 is also not in accordance with the ratio laid down by the Apex Court. In the light of the discussions held by me above, the second prayer of the writ petitioners in Writ Petition No.111008/2017 is not sustainable and it is not having any force and the same is liable to be rejected and accordingly it is rejected.
26. Coming to the main aspect of the case, it is an admitted fact that the Calendar of Events have been issued and the election is already set in motion, then under such circumstances, this Court cannot interfere with the election process in view of the dictum laid down by the Hon’ble Apex Court in the case of Shaji K.Joseph quoted supra and also in the decision of Pt. Ram Nath Kalia Vs. Election Commission of India and Another quoted supra. At this juncture, I also rely upon one more decision of the Hon’ble Apex Court in the case of N.P.Ponnuswami Vs. Returning Officer, Namakkal reported in AIR 1952 SC 64, therein the Hon’ble Apex Court while considering the interference in election petition it has been held at paragraph 9 which reads 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.“ 27. By going through the above said decisions any manner which has the effect of vitiating the election should be brought up only at the appropriate stage in an appropriate manner and should not be brought at an intermediate stage before any Court. If there are any errors, then at the pre-polling stage, the matter cannot be taken up by the Courts and if at all they want to challenge the same, he can challenge it in the form of election petitions. It also makes it clear that where a right or liability is created by a statute the remedy provided by that statute must be availed of, not otherwise. This proposition of law has also been laid down by the Hon’ble Apex Court by Babu Vergies and Others quoted supra and also in the decision of Wolver Hampton New Water Works Co. Vs. 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.”
28. When once the process of election has been set in motion, it would not be justified in interfering with the election process by giving direction to the Election Officer to stall the proceeding or conduct the election process afresh. This proposition of law has also been laid by the Hon’ble Apex Court in the case of Boddula Krishnaiah Vs. State Election Commissioner reported in (1996)3 SCC 416, wherein paragraphs 11 and 12 reads 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.
29. Keeping in view the ratio laid down in the above said decisions on perusal of the facts of this case on hand it makes it clear that the election process has been started as long back as on 2.9.2016 and the Calendar of Events have been issued as per Annexure-D and even two candidates have been selected unanimously as per Annexure-G. In that light and that too when the writ petitioners have not made out any grounds to show that the Calendar of Events issued under Annexure-D suffers from any malafides or it is not in accordance with the procedure established in the bye-laws or in violation of Rules. No direction can be issued either to quash the Calendar of Events or to issue fresh Calendar of Events. The only remedy left open is to hold the elections as per the Calendar of Events issued already from the stage where it has been stopped. This proposition of law has been upheld by a Division Bench of this Court in Writ Appeal No.200250/2016 connected with W.P.No.200098/2016 dated 30.3.2017 of which I am (B.A.Patil J.) a Member.
30. In view of the discussion held by me above, the process of election started should not be stalled by the Court by its interference and no election will be completed without further orders of the Court. When the bye-laws do not provide any scope for stopping the Calendar of Events, then under such circumstances, a direction can be issued to the Returning Officer to proceed by resuming from the stage at which the proceedings have been interrupted or stopped 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. It is also made it clear that the order dated 17.11.2017 has not been challenged and it has not been set aside. In that light, taking into consideration the said order, the further proceedings of the election has to be completed expeditiously.
31. In view of the said facts and circumstances, the order dated 18.11.2017 as per Annexure-M is quashed by holding that the postponement of the election, once the Calendar of Events have been started is illegal and it is not in accordance with the law laid down by the Hon’ble Apex Court.
With the aforesaid observations, the writ petitions are disposed of.
Consequently, impleading applications filed in WP.Nos.57983-57984/2017, in WP.Nos.111008- 111009/2017 and in WP.Nos.111531-111534/2017; I.A.No.3/2018 in WP.Nos.57983-57984/2017; I.A.No.1/2017 in WP.No.111008-111009/2017 are dismissed as they do not survive for consideration.
Sd/- JUDGE AP/-