IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MAY 2019 BEFORE THE HON’BLE MRS. JUSTICE S. SUJATHA WRIT PETITION NO.21814/2019 (CS-EL/M) BETWEEN:
SRI VINOD S SALIAN S/O SRI SADASHIVA SALIAN AGED ABOUT 41 YEARS R/A VALALANKE MANE BELLAYURU GRAMA AND HALEYANGADI POST MANGALORE-DK-574146 …PETITIONER (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-560001 REP BY ITS PRINCIPAL SECRETARY 2. THE STATE CO OPERATIVE ELECTION COMMISSION 3RD FLOOR, T T M C ‘A’ BLOCK SHANTHI NAGAR BENGALURU-560027 REP BY ITS SECRETARY 3. DEPUTY COMMISSIONER/DISTRICT ELECTION OFFICER NEAR STATE BANK BUS STAND MANGALORE DK DISTRICT-575001 4. ASSISTANT REGISTRAR CO OPERATIVE SOCETIES PUTTUR DIVISION DAKSHINA KANNADA PUTTUR TOWN PUTTUR-574201 5. RETURNING OFFICER DAKSHINA KANNADA ZILLA SAHAKARI UNION MANGALORE ALSO DEPUTY DIRECTOR OF AUDITING CO OPERATIVE SOCEITIES MANGALORE-575001 6. REGISTRAR OF CO OPERATIVE SOCETIES KARNATAKA STATE NO.1, ALIASKAR ROAD BENGALURU-560052 7. JOINT REGISTRAR CO OPERATIVE SOCIETIES MYSORE REGION PUBLI OFFICES BUILDING N S RAO ROAD MYSORE-24 8. DEPUTY REGISTRAR OF CO OPERATIVE SOCIETIES DAKSHINA KANNADA DISTRICT SAHAKARI MAHAL MISSION STREET MANGALORE-575001 9. DAKSHINA KANNADA ZILLA SAHARI UNION MANGALORE REP BY ITS CHIEF EXECUTIVE OFFICER K S RAO ROAD KODIAMBAIL MANGALORE-575001 …RESPONDENTS (SRI. A.C.BALRAJ, HCGP FOR R1 & R8.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REJECTED LIST OF NOMINATION PAPERS PREPARED BY R-5 AND THEREBY DECLARING THE CANDIDATURE AND NOMINATION OF THE PETITIONER AS VALID, (PRODUCED AT ANNEXURE-E1).
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned Additional Government Advocate accepts notice on behalf of respondent Nos.1 to 8.
2. The petitioner has challenged the list of the nomination paper prepared by respondent No.5, whereby the candidature and nomination of the petitioner has been rejected for the election scheduled to be held on 25.05.2019 to the respondent No.9-Union.
3. The petitioner is claiming to be the delegate/representative of Padupanamburu Sahakari Vyavsayika Sangha. It is contended that the term of the Managing committee of respondent No.9-Union comes to an end on 25.05.2019.
4. Sri. Aruna Shyam M., learned counsel appearing for the petitioner would submit that the petitioner’s nomination paper has been rejected, without assigning any valid and proper reason and also not providing any opportunity of hearing. Hence, alternative remedy available under Section 70 of the Karnataka Co-operative Societies Act,1959 (hereinafter referred as “the Act” for short) is no bar to invoke the writ jurisdiction under Articles 226 and 227 of the Constitution of India. In support of his contention, the learned counsel relies upon the judgment of the Hon’ble Apex Court in the case of Bharati Reddy V/s. State of Karnataka and others reported in (2018) 12 Supreme Court Cases 61.
5. Learned Additional Government Advocate appearing for respondent Nos.1 to 8 would contend that no writ petition is maintainable once the calendar of events are notified, the petitioner cannot circumvent the alternative remedy available under the Act. Accordingly, he seeks for dismissal of the writ petition.
6. I have carefully considered the arguments of the learned counsel appearing for the parties.
7. It is a well settled law that no dispute regarding the election can be entertained by this Court, more particularly, in view of the alternative and efficacious remedy available under Section 70 of the Act, whereby it is contemplated 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, shall be deemed to be the dispute touching the constitution, management, or the business of a Co-operative Society and such dispute shall be referred to the Registrar for decision who shall have the jurisdiction to entertain any suit or other proceedings in respect of such dispute.
8. In the case of Avtar Singh Hit V/s. Delhi Sikh Gurdwara Management Committee and Others, [2006] 8 SCC 487, the Hon'ble Apex Court in paragraph Nos.19,20,22 and 23 has held as under:
“19. It is well-settled principle that where elections are conducted in accordance with the provisions of a statute 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 series of decisions rendered by this Court. The earliest decision was rendered in N.P. Ponnuswami vs. The Returning Officer AIR 1952 SC 64 by a Bench of six learned Judges. In this case the nomination paper of the appellant for election to Madras Legislative Assembly was rejected by the Returning Officer. The appellant challenged the rejection of the nomination paper by filing a writ petition in the High Court which was dismissed on the ground that it had no jurisdiction to interfere with the order of the Returning Officer on account of Article 329(b) of the Constitution, which says that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. In appeal, this Court examined the question whether the writ petition would be maintainable at the initial state against an order rejecting the nomination paper. Certain observations made in para 9 of the reports are relevant and they are being reproduced below: [SCR p. 228] "The law of elections in India does not contemplate 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 another after they have been completed by means of an election petition. 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."
20. In para 12 it was observed:
"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.
It will be a fair inference from the provisions of the Representation of the People Act to draw 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."
22. The same view has been taken in regard to the elections held in accordance with some statutory provision where Article 329(b) of the Constitution is not applicable and they are not governed by Representation of the People Act. In K.K. Shrivastava vs. Bhupendra Kumar Jain AIR 1978 SC 1703, the dispute related to election to Bar Council of Madhya Pradesh under the Indian Advocates Act and Rule 31 of Election Rules framed by Bar Council of Madhya Pradesh provided that all disputes arising under the Rule shall be decided by a tribunal to be known as an election tribunal. The defeated candidate approached the High Court under Article 226 of the Constitution challenging the validity of the election which was allowed by the High Court. This Court set aside the judgment of the High Court with the following observations:[SCC p. 496, para 3] "Where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.”
9. In the present case, Section 70(2)(C) of the Act provides for adjudication of Election disputes by the Registrar of Co-operative Societies. This Court in number of cases has already held that the rejection of the nomination paper requires to be adjudicated under Section 70 of the Act and has relegated the petitioner/s to avail the remedy available under Section 70 of the Act.
10. It is not in dispute that the Hon’ble Apex Court in Bharati Reddy’s case (supra) has held that power of judicial review under Articles 226/227 of the Constitution of India is an essential feature, which neither be tinkered with nor eroded, even the Constitution cannot be amended to erode basic structure of Constitution. Therefore, it cannot be said that the writ petition filed under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the Court exercising the power under Articles 226/227 to entertain the writ petition. The said judgment was rendered in the context where the voter, not a member of the Zilla Panchayat had challenged the election of the appellant therein, to the office of the Adhyaksha under Articles 226/227 of the Constitution of India. Accordingly, it has been held that the writ petition before the High Court is maintainable as the petitioner therein was not entitled to challenge the election of the appellant to the office of the Adyaksha by filing an election petition as they were not the members of the Zilla Panchayath in question.
11. However, in view of the categorical finding of the Hon'ble Apex Court that the Court exercising the power under Articles 226/227 of the Constitution has to exercise the discretion to entertain the writ petition, this Court is of the view that the rejection of the nomination paper based on the factual aspect requires to be considered by the Registrar in terms of Section 70 of the Act, the machinery provided for determination of dispute arising out of elections more particularly, the right to vote, contest or dispute election being a statutory right regulated by statutory provisions. Hence, the writ petition filed by the petitioner by-passing the statutory remedy available under the Act cannot be entertained. On these grounds, the writ petition deserves to be rejected. Hence, the following:
ORDER Writ petition stands dismissed with liberty to the petitioner to avail the remedy of settlement of disputes available under Section 70 of the Karnataka Co-operative Societies Act, 1959, in accordance with law.
Sd/- JUDGE KTY