IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF MAY, 2019 PRESENT :
THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY AND THE HON’BLE MR.JUSTICE S.G.PANDIT WRIT APPEAL No.1432 OF 2019, WRIT APPEAL No.1433 OF 2019, WRIT APPEAL No.1434 OF 2019 & WRIT APPEAL No.1435 OF 2019 (CS-EL/M) IN WA No.1432/2019 :
BETWEEN:
Sri Santhosh Kumar Shetty S/o Sri. Vishwanath Shetty Aged about 44 years, R/at Kuntajal House, Mudpadkodi Post and Village, Bantwal, D.K.-574 211.
(By Sri. Aruna Shyam M, Advocate) AND:
1. The State of Karnataka Department of Co-operation M.S. Building, Dr. B.R. Ambedkar Veedhi, …Appellant Bengaluru-560 001.
Rep. by its Principal Secretary.
2. The State Co-operative Election Commission, 3rd Floor, T.T.M.C ‘A’ Block, Shanti Nagar, Bengaluru-560 027. Rep. by its Secretary.
3. Deputy Commissioner/District Election Officer Near State Bank Bus Stand, Mangalore, D.K.District-575 001.
4. Assistant Registrar Co-operative Societies, Puttur Division, Dakshina Kannada, Puttur Town, Puttur-574 201.
5. Returning Officer Dakshina Kannada Zilla Sahakari Union, Mangalore, Also Deputy Director of Auditing Co-operative Societies, Mangalore-575 001.
6. Registrar of Co-operative Societies Karnataka State No.1, Aliaskar Road, Bengaluru-560 052.
7. Joint Registrar Co-operative Societies, Mysore region, Public Offices Building, N.S.Rao Road, Mysore-24.
8. Deputy Registrar of Co-operative Societies Dakshina Kannada District, Sahakari Mahal, Mission Street, Mangalore-575 001.
9. Dakshina Kannada Zilla Sahakari Union, Mangalore, Rep. by its Chief Executive Officer, K.S.Rao Road, Kodiambail, Mangalore-575 001.
(By Sri. A.K.Vasanth, AGA for R1, R3 to R8) …Respondents This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to allow this appeal, set-aside the order dated 21.05.2019 passed by the Learned Single Judge in Writ Petition No.21818/2019 and consequently to allow the writ petition as prayed for.
IN WA No.1433/2019 BETWEEN:
Sri. Shivaram Rai. B S/o. Sri. Kittanna Rai, Aged about 53 years, R/at Bolikala Kaje Mane, Keyuru grama and Madavu Post, Puttur, D.K-574 210.
(By Sri. Aruna Shyam M, Advocate) …Appellant AND:
1. The State of Karnataka Department of Co-operation M.S. Building, Dr. B.R. Ambedkar Veedhi, Bengaluru-560 001.
Rep. by its Principal Secretary.
2. The State Co-operative Election Commission, 3rd Floor, T.T.M.C ‘A’ Block, Shanti Nagar, Bengaluru-560 027. Rep. by its Secretary.
3. Deputy Commissioner/District Election Officer Near State Bank Bus Stand, Mangalore, D.K.District-575 001.
4. Assistant Registrar Co-operative Societies, Puttur Division, Dakshina Kannada, Puttur Town, Puttur-574 201.
5. Returning Officer Dakshina Kannada Zilla Sahakari Union, Mangalore, Also Deputy Director of Auditing Co-operative Societies, Mangalore-575 001.
6. Registrar of Co-operative Societies Karnataka State No.1, Aliaskar Road, Bengaluru-560 052.
7. Joint Registrar Co-operative Societies, Mysore region, Public Offices Building, N.S.Rao Road, Mysore-24.
8. Deputy Registrar of Co-operative Societies Dakshina Kannada District, Sahakari Mahal, Mission Street, Mangalore-575 001.
9. Dakshina Kannada Zilla Sahakari Union, Mangalore, Rep. by its Chief Executive Officer, K.S.Rao Road, Kodiambail, Mangalore-575 001.
(By Sri. A.K.Vasanth, AGA for R1, R3 to R8) …Respondents This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to allow this appeal, set-aside the order dated 21.05.2019 passed by the Learned Single Judge in Writ Petition No.21817/2019 and consequently to allow the writ petition as prayed for.
IN WA No.1434/2019 BETWEEN:
Sri. Gangadhar V Shetty S/o. Sri. Vasudeva Shetty, Aged about 60 years, R/at Berke Thota Mane, Athikaribettu Post, Mulki-Mangalore, D.K.-574 154.
(By Sri. Aruna Shyam M, Advocate) AND:
1. The State of Karnataka Department of Co-operation M.S. Building, Dr. B.R. Ambedkar Veedhi, Bengaluru-560 001.
Rep. by its Principal Secretary.
2. The State Co-operative Election Commission, 3rd Floor, T.T.M.C ‘A’ Block, Shanti Nagar, Bengaluru-560 027. Rep. by its Secretary.
3. Deputy Commissioner/ District Election Officer Near State Bank Bus Stand, Mangalore, D.K.District-575 001.
4. Assistant Registrar Co-operative Societies, Puttur Division, Dakshina Kannada, Puttur Town, Puttur-574 201.
5. Returning Officer Dakshina Kannada Zilla Sahakari Union, Mangalore, …Appellant Also Deputy Director of Auditing Co-operative Societies, Mangalore-575 001.
6. Registrar of Co-operative Societies Karnataka State No.1, Aliaskar Road, Bengaluru-560 052.
7. Joint Registrar Co-operative Societies, Mysore region, Public Offices Building, N.S.Rao Road, Mysore-24.
8. Deputy Registrar of Co-operative Societies Dakshina Kannada District, Sahakari Mahal, Mission Street, Mangalore-575 001.
9. Dakshina Kannada Zilla Sahakari Union, Mangalore, Rep. by its Chief Executive Officer, K.S.Rao Road, Kodiambail, Mangalore-575 001.
…Respondents (By Sri. A.K.Vasanth, AGA for R1, R3 to R8) This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to allow this appeal, set-aside the order dated 21.05.2019 passed by the Learned Single Judge in Writ Petition No.21816/2019 and consequently to allow the writ petition as prayed for.
IN WA No.1435/2019 BETWEEN:
Sri. Vinod S. Salian S/o. Sri. Sadashiva Salian, Aged about 41 years, R/at Valalanke Mane, Bellayuru grama and Haleyangadi Post, Mangalore, D.K.-574 146.
(By Sri. Aruna Shyam M, Advocate) AND:
1. The State of Karnataka Department of Co-operation M.S. Building, Dr. B.R. Ambedkar Veedhi, Bengaluru-560 001.
Rep. by its Principal Secretary.
2. The State Co-operative Election Commission, 3rd Floor, T.T.M.C ‘A’ Block, Shanti Nagar, Bengaluru-560 027. Rep. by its Secretary.
3. Deputy Commissioner/District Election Officer Near State Bank Bus Stand, Mangalore, D.K.District-575 001.
…Appellant 4. Assistant Registrar Co-operative Societies, Puttur Division, Dakshina Kannada, Puttur Town, Puttur-574 201.
5. Returning Officer Dakshina Kannada Zilla Sahakari Union, Mangalore, Also Deputy Director of Auditing Co-operative Societies, Mangalore-575 001.
6. Registrar of Co-operative Societies Karnataka State No.1, Aliaskar Road, Bengaluru-560 052.
7. Joint Registrar Co-operative Societies, Mysore region, Public Offices Building, N.S.Rao Road, Mysore-24.
8. Deputy Registrar of Co-operative Societies Dakshina Kannada District, Sahakari Mahal, Mission Street, Mangalore-575 001.
9. Dakshina Kannada Zilla Sahakari Union, Mangalore, Rep. by its Chief Executive Officer, K.S.Rao Road, Kodiambail, Mangalore-575 001.
(By Sri. A.K.Vasanth, AGA for R1, R3 to R8) …Respondents This Writ Appeal is filed under Section 4 of the Karnataka High Court Act praying to allow this appeal, set-aside the order dated 21.05.2019 passed by the Learned Single Judge in Writ Petition No.21814/2019 and consequently to allow the writ petition as prayed for.
These Writ Appeals coming on for Preliminary Hearing this day, Dr.H.B.Prabhakara Sastry, J., delivered the following:
JUDGMENT The appellants in all these appeals have challenged the rejection of their candidature/nomination with respect to the election scheduled to be held to respondent No.9- Dakshina Kannada Zilla Sahakari Union, Mangaluru.
The nomination of the appellants in Writ Appeal Nos.1433/2019 and 1434/2019 were rejected by the Election Officer on the ground that the candidates have not clearly mentioned as to from which particular Constituency they are contesting.
The nomination of the appellant in Writ Appeal No.1432/2019 was rejected on two grounds, that firstly the candidate has given a wrong serial number of his membership in the delegation form. Secondly, the serial number of proposers were also wrongly mentioned.
The nomination of the appellant in Writ Appeal No.1435/2019 was rejected on the ground that the Co-operative Society which the candidate was representing was not finding a place in the list of the Co- operative Societies.
2. Admittedly, the date of election is scheduled to be held on 25.5.2019 and their candidature was rejected on 18.5.2019. All the appellants aggrieved by the rejection of their nomination by the Returning Officer (respondent No.5), filed Writ Petitions before the learned Single Judge challenging the said order. All those writ petitions came to be dismissed by the orders of the learned Single Judge on 21.5.2019, with an observation that the writ petitioners had an alternative remedy to sort out their grievances under Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter for brevity referred to as `KCS Act’). It is against the said orders of the learned Single Judge dated 21.5.2019, the appellants have preferred these appeals.
3. The appellants are being represented by their counsel and respondent Nos.1 and 3 to 8 are being represented by learned Addl.Government Advocate.
4. Though the matter is listed for preliminary hearing, however, after hearing the submissions made by the learned counsel from both side, the matter is taken up for final disposal with their consent.
5. The learned counsel for the appellants in his argument submitted that the availability of an alternative remedy is not a bar for this Court exercising its power under Article 226 of the Constitution of India. He also submitted that there is a blatant denial of natural justice in favour of the appellants by the Returning Officer and also that the highhandedness and arbitrary acts of the respondents are evident. In such a situation, since the appellants have got no other alternative and efficacious remedy, have approached this Court.
He further submitted that in case if this Court does not interfere and give an opportunity for the appellants to contest the matter, it results into denial of a valuable right for the appellants from contesting the election. He also submitted that the rejection of the nominations of the appellants by the Election Officer is purely on some trivial technical reasons. As such also, there is urgency in the matter and immediate necessity for this Court to interfere and allow the writ appeals by setting aside the impugned order challenged in these appeals. In his support, he relied upon few judgments of this Court and also of the Hon’ble Apex Court which would be considered at a relevant part of this order hereafterwards.
6. Learned Addl.Government Advocate in his arguments submitted that it is a settled principle and a principle laid down by the Hon’ble Apex Court in catena of decisions that once the election process begins, the Court must be hesitant to intervene or interfere in it which results in stalling the further election process. Learned Addl.Government Advocate further submits that if at all the appellants are aggrieved by the impugned order, they have got an equally efficacious remedy specially provided for the similar purposes under Section 70(2) of KCS Act, which they can invoke even by filing an Election Petition. In his support, learned Addl.Government Advocate also relies upon few judgments of Hon’ble Apex Court which would be considered at the relevant stage hereafterwards.
7. The undisputed fact is that the present appellants had filed their nomination to contest the election to the Managing Committee of respondent No.9, which is a District Sahakari Union, for the period 2019-2024. As per the Calendar of Events of the election, the election is scheduled to be held on 25.5.2019. The nomination forms filed by the appellants herein were rejected by the Election Officer for the reasons mentioned above. The date of rejection of the nomination form after scrutiny was 18.5.2019 as could be seen from the Calendar of Events produced at Annexure-`A’.
8. Admittedly, the constitution, management and governance of respondent No.9 is governed under the KCS Act. Section 70 of the said Act speaks about the disputes which may be referred to Registrar for decision. Clause (c) of sub-section (2) of the Section 70 of the KCS Act further clarifies that, any dispute arising in connection with the election of a President, Vice-President or any office-bearer or Member of Board of the Society is deemed to be the disputes touching the constitution, management or the business of a Co-operative Society, and is required to be brought before the Registrar for decision under Section 70(1) of KCS Act. Thus, prima facie and by a bare reading of Section 70 of KCS Act, it makes it clear that the dispute with respect to election to the Board of a Society is to be adjudicated before the Registrar of Co-operative Societies. However, according to the learned counsel for the appellants, the said law is not absolute, but, it attracts some inlets in it under extraordinary and urgent circumstances where the interference of this Court under Articles 226 of the Constitution of India is required.
9. In his support, learned counsel for the appellants firstly relies upon an order passed by the learned Single Judge of this Court in the case of Mr.Ravindra Nayak and others –vs- Karnataka State Election Commission and others, in Writ Petition No.44499/2018 & connected matters, decided on 14.01.2019. In the said petitions, the writ petitioners had challenged the Notification issued by the respondent/State stipulating reservation for various wards of the Mangaluru City Corporation with respect to an upcoming election in March 2019. No doubt, the learned Single Judge in those batch of writ petitions was pleased to set aside the Notification relating to reservation, however, it cannot be forgotten of the fact that the interference was made by this Court invoking Article 226 of the Constitution of India at an early stage, that too, confining it to considering the validity and correctness of the Notification with respect to reservation of various wards. Whereas, the case on hand is with respect to rejection of a candidature/nomination of a candidate in an election when, as per the Calendar of Events, the election process was in midway. As such, in our view, the said case relied upon by the learned counsel for the appellants would not enure to his benefit.
Secondly, the learned counsel for the appellants has relied upon a judgment of Hon’ble Apex Court in the case of Election Commission of India, through Secretary – vs- Ashok Kumar and others, reported in [(2000) 8 Supreme Court Cases 216]. In the said matter, which was involving an election to Lok Sabha, the Hon’ble Apex Court was pleased to observe that Representation of the People Act, 1951, provides for only one remedy and that remedy being an Election Petition to be presented after the election is over. As such, there was no remedy provided at any intermediate stage. With the said observation, the Hon’ble Apex Court held that the non- obstante clause with which Article 329 opens and pushes out Article 226 of the Constitution of India where the dispute takes the form of calling in question an election.
In the very same judgment, at Para-32(1), the Hon’ble Apex Court while restating what the two Constitution Benches had already said, was pleased to observe that, in an election (the term `election’ being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
With great respect to the said judgment, it is submitted that the said finding of the Hon’ble Apex Court that Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election was made in a circumstance wherein the petitioner had no other remedy except approaching the High Court invoking Article 226 of the Constitution of India. Whereas, in the case on hand, the appellants had and also have an alternative remedy under Section 70 of KCS Act. As such, the said judgment in Ashok Kumar’s case (supra) would also of no avail to the appellants.
The third judgment which the learned counsel for the appellants relies upon in his support is the order passed by the learned Single Judge of this Court in Writ Petitions Nos.6162-6165/2014 (CS) dated 18.02.2014 in the case of Ashraf and others Vs. The Returning Officer and others. In the said case, no doubt, the fact did also include the rejection of the nomination of petitioner No.1 on the ground that there was discrepancy in the Serial Number of the proposers as mentioned in the nomination papers and the voters’ list. The rejection of nomination of petitioner No.4 was on the ground that he had only enclosed a xerox copy of the Caste Certificate and not the original. After a detailed hearing stretching into more than one date of hearing, the learned Single Judge was pleased to allow the writ petitions.
No doubt, the learned Single Judge in Ashraf’s case (supra) allowed the writ petitions, but it cannot be lost sight of the fact that in the said process, the learned Single Judge had secured the records and also had directed the Additional Government Advocate to keep present the Returning Officer (Respondent No.1) before the Court and accordingly the said Returning Officer was present before the Court along with the records. It is after going through all the records in its entirety, the learned Single Judge proceeded to pass the order, allowing the writ petitions. Whereas in the case on hand, as already observed, the election process has already begun and the election is scheduled to be held on 25.05.2019. Further, neither this Court could able to secure the presence of the Returning Officer nor the documents which have made him to pass the impugned order. More over, the question of availability of alternate remedy was not at all considered by the learned Single Judge in the said order passed in Ashraf’s case (supra).
The last order relied upon by the learned counsel for the appellants in his support is an interim order dated 16.05.2019 passed by the learned Single Judge of this Court in Sri. Sundar Hegde Vs. The State of Karnataka and others passed in Writ Petition No.21696/2019 (CS-EL/M). In the said case, the question involved was non-inclusion of the name of an eligible voter in the voters’ list. The said aggrieved voter had already contested the said act of omission of his name in the voters’ list by filing a writ petition. As such, the learned Single Judge was pleased to pass the interim order permitting the petitioner before him to exercise his franchise, however, debarring him from claiming any equity if he fails in the writ petition.
Since the question involved in Sundar Hegde’s case (supra) was about the omission of the name of an eligible voter, the same cannot be taken at par with rejection of candidature/nomination of a person from contesting an election. As such also, we are of the view that the said case since varies in its facts and circumstances would not enure to the benefit of the appellants.
10. Learned Addl. Government Advocate in his support relied upon the judgment of the Hon’ble Apex Court in S.T. Muthusami Vs. K. Natarajan and others, reported in A.I.R. 1988 Supreme Court 616, wherein the Hon’ble Apex Court was pleased to observe that, it was not appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of election process and before the declaration of the result of the election held for the purpose of filling a vacancy in the Office of the Chairman of a Panchayat Union under the provisions of the Tamil Nadu Panchayats Act, 1958 on the ground that, there was an error in the matter of allotment of symbols to the candidates contesting at such election. Thus, the Hon’ble Apex Court was reluctant in interfering under writ jurisdiction in an election matter which was already in vogue.
The second order relied upon by the learned AGA in his support is in the case of Jayamuthu Vs. State Election Commission for Co-operation and others reported in LAWS (KAR) 2015 9 182, wherein even though the learned Single Judge of this Court had granted an interim order in favour of the petitioner earlier, but, in his final order, the learned single judge was pleased to observe that, various judgments of this Court as well of the Hon’ble Apex Court in the matters pertaining to the elections, have time and again held that an election petition is an appropriate remedy to address the grievance of the petitioners. Once the calendar of events has been issued, the Court should decline from interfering, exercising its discretion/jurisdiction. Further elaborating the said principle, the learned Single Judge was ultimately pleased to dismiss the writ petition.
Thirdly, the learned AGA has relied upon a decision of the Hon’ble Apex Court in the case of Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee and others reported in [(2006) 8 Supreme Court Cases 487]. At paragraph 19 of its judgment, the Hon’ble Apex Court was pleased to observe as below:
“ It is well settled principle that where elections are conducted in accordance with the provisions of a statue and the statute also provides a remedy of settlement of election disputes by filing an election petition before a tribunal, it is that remedy alone which should be availed of and recourse cannot be taken to proceedings under Article 226 of the Constitution. This view has been taken in a series of decisions rendered by this Court.”
The last judgment relied upon by the learned AGA in his support is in the case of Supreme Court Bar Association and others Vs. B.D. Kaushik, reported in [(2011) 13 Supreme Court Cases 774], wherein at paragraph 60 of its judgment, the Hon’ble Apex Court was pleased to observe as below:
“60. Further, the appellants had rightly pointed out to the learned Judge that election process had already started and, therefore, injunction, as claimed, should not be granted. Since 1952 this court has authoritatively laid down that once election process has started the courts should not ordinarily interfere with the said process by way of granting injunction. The argument advanced by the appellants that election process having started, the injunction should not be granted is dealt with by the learned Judge by holding that in the present case the plaintiffs have not prayed for injunction against the election process.”
From the above judgments relied upon by both the side, one point is clear that though there is no absolute bar from invoking Article 226 of the Constitution of India with respect to an election, however, before invoking the writ jurisdiction, it has to be convinced to the Court that it is an extra-ordinary situation or circumstance which warrants or compels the Court to interfere. Otherwise, if there is any efficacious alternate remedy or a reasonable opportunity and time available to the petitioner to get redressal of his grievance, in such a situation and circumstance, the Courts must be hesitant to interfere, more particularly, invoking its power under Article 226 of the Constitution of India.
11. Undisputedly the present case is with respect to an election to the management of respondent No.9 which respondent is being governed under KCS Act. As already observed above, Section 70 of KCS Act makes it very clear that any dispute touching the constitution, management or the business of a Co-operative Society has to be resolved before the Registrar of Co-operative Societies. The very same section of the KCS Act further makes it very clear that, any dispute arising in connection with the election of a President, Vice President or any office-bearer or a Member of the Board of the Society is a dispute touching the constitution, management or the business of a Co-operative Society. Thus, the petitioners who are challenging the rejection of their nomination in the election to the respondent No.9 - Union have got an alternate remedy before the Registrar of Co-operative Societies under Section 70 of the KCS Act.
12. The next question would be whether such alternate remedy available to the appellants under Section 70 of the KCS Act is as efficacious as the one under Article 226 of the Constitution of India. Though this question cannot be answered either in ‘positive’ or in the ‘negative‘ as a standard answer to meet all circumstances and situations, but, the same is required to be appreciated in the light of the facts and circumstances of each of the case. In the case on hand, admittedly, the nomination of the appellants were rejected by the Returning Officer on 18.05.2019, as such, from the said date till the date of election which is scheduled to be held on 25.05.2019, the appellants had seven clear days to challenge the said order before the Registrar of Co- operative Societies under Section 70 of the KCS Act. Nothing had prevented them to approach the competent authority and to seek redressal of their grievances.
13. Learned counsel for the appellants in his arguments submitted that there is high handedness and political motivation and also that the redressal of dispute before the Registrar of Co-operative Societies under Section 70 of the KCS Act involves a detailed procedure, as such there was no hope for the appellants of getting any interim relief at the earliest. We are not inclined to accept the said submission at its facial value. Merely because the Registrar of Co-operative Societies is not an adjudicatory body at par with National Courts, one cannot conclude that there is no scope for the aggrieved person approaching the said authority of getting any necessary relief in the matter.
Secondly when the statute has created or appointed a special authority exclusively for resolving the disputes including the one on hand, then the said specially constituted body or authority would be in a better position to meet the situation at the earliest and pass appropriate order which deserves in the circumstances of the case before it. As such, we are of the view that the appellants have no excuse for bypassing the said authority under Section 70 of the KCS Act and directly approaching this Court, that too, after the election process has begun and only when two days is left for voting to be held.
14. Therefore, considering the entire facts and circumstances of the case, we are of the view that the appellants cannot be considered as the persons with no legal remedy for redressal of their grievance. On the other hand, they have an equally efficacious alternate remedy which they are required to invoke. This Court in the matter where the election process is already going on, cannot interfere and stall the further election process. As such, we do not find any merit in these writ appeals and we do not find any reason for interfering with the order passed by the learned Single Judge in the writ petitions. Accordingly, the Writ Appeals stand dismissed.
The liberty granted by the learned Single Judge to the appellants herein to avail the remedy under Section 70 of the KCS Act remains unaltered.
In view of dismissal of the Writ Appeals, I.A.No.4 of 2019 filed in all the Writ Appeals become infructuous, as such stand disposed of.
Sd/- JUDGE Sd/- JUDGE bk/BMV