IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 P R E S E N T THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE & THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT APPEAL NOS. 149-150 OF 2019 (CS-EL/M) Between:
1. Y.S.Ramaswamy, S/o. Late Siddegowda, Age: 65 years, Yelachenahalli Village and Post, T.Narasipura Taluk, Mysuru District-571 101.
(Senior citizenship benefit not claimed).
2. Y.K.Naveen, S/o.Late Y.K.Kollegowda, Age: 44 years, Yelachenahalli Village and Post, T.Narasipura Taluk, Mysuru District-571 101.
…Appellants (By Sri. Shivaramu H.C., Adv.) And:
1. The State of Karnataka, By its Secretary to the Department of Co-Operation, M.S.Building, Dr.B.R.Ambedkar Veedhi, Bengaluru-560 001.
2. District Election Officer & Joint Registrar of Co-Operative Societies, Mysuru District, Mysuru-571105.
3. The Returning Officer & Assistant Registrar of Co-Operative Societies, Mysuru Sub-Division, Mysuru District-570024.
4. Primary Agriculture Credit Co-Operative Society Limited, Yelachenahalli Village & Post, Bannur Hobli, T-Narasipura Taluk, Mysuru District-571101, Represented by its CEO.
5. Hemanth KumarY.K., S/o. Late Y.K.Kempegowda, Age: 35 years.
6. Y.C.Puttaraju, S/o. Sannankegowda, Age: 48 years.
7. Devaraju Y.M., S/o. Late Madegowda, Age: 49 years.
8. Kantharaju Y.L., S/o.Y.M.Lingaiah, Age: 36 years.
Appellants 5-8 are residents of Yelachenahalli Village and Post, T.Narasipura Taluk, Mysuru District-571 101.
…RESPONDENTS (By Sri Vijay Kumar Y.H., Prl.G.A. for R1 to R3) These Writ Appeals are filed under Section 4 of the Karnataka High Court Act praying to set aside the order dated 18/01/2019 passed by the learned Single Judge in so far as it pertains to WP Nos.2332-2333/2019 and allow these writ appeals.
These Writ Appeals coming up for Orders on Office objection, this day, Hon’ble the Acting Chief Justice delivered the following:
JUDGMENT Office has raised objection that translation copies of annexures ‘A’ to ‘E’ to the appeals have not been furnished. Accepting the submission of learned counsel for the appellants, said objection is over-ruled.
2. These appeals have been filed praying to set aside the order dated 18.01.2019 passed by the learned Single Judge in so far as it pertains to W.P. Nos.2332-2333 of 2019, filed by the appellants herein.
3. With consent of learned counsel appearing on both sides, the matter is heard for final disposal.
4. Learned counsel submits that the appellants herein are the members of the fourth respondent – Society. The election to the said Society is scheduled to be held on 28.01.2019. In the voters’ list published, the appellants were excluded from the eligible voters’ list. Hence, they preferred W.P. Nos.2332-2333 of 2019 along with similarly placed persons questioning the validity of S.20(2)(a-iv) and (a-v) of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the Act’ for short) and to declare the said section as ultravires the Constitution and to issue a writ of madamus to direct the respondents to permit them to contest the ensuing election. On the application No. I.A.2 of 2019, filed by them, learned Single Judge has passed the impugned order directing the respondent – authorities to permit the petitioners to cast their votes without reference to their disqualification, pursuant to the amended provisions of clauses (a-iv) and (a-v) of Section 20(2) of the Act and further clarifying that the petitioners shall not be permitted to contest the election. Being aggrieved by the said interim order, the appellants have preferred these appeals.
5. Learned counsel for the appellants insisted to grant interim order contending that though the petitioners are permitted to vote as per the order of the learned Single Judge passed on 18.01.2019, they have not been permitted to contest for the election. Appellant No.1 has filed nomination papers from non-borrower constituency and appellant No.2 has filed nomination papers from borrower constituency. If they are not permitted to contest the election, much inconvenience would be caused as there are no other candidates participating in the election from the said constituencies. Hence, learned counsel submits that an interim order be passed in these appeals permitting the appellants herein to contest the election scheduled to be held on 28.01.2019 for the fourth respondent – Society.
6. Learned Government Advocate appearing for the respondents vehemently argued that the appellants/petitioners are prohibited to contest the election by virtue of the provisions of law under S.20(2)(a-iv) and (a-v) of the Act.
7. Having heard learned advocates appearing on both sides, we have perused the writ record.
8. Learned Single Judge by the impugned order has permitted the petitioners to cast their vote in the election but denied permission to contest the election. It is the contention of the appellants / petitioners that they have submitted their nomination papers from both borrowers and non-borrowers constituencies. Since no other candidates are hailing from the said constituencies, if they are not permitted to contest the election, no candidate would be available in the said constituencies which may be detrimental to the interest of the Members of the fourth respondent - Society. The said submission cannot be accepted as it is not appropriate for this Court to grant permission to the appellants / petitioners when Section 20(2) of the Act operates against them. As long as the said provision is not struck down it is to be presumed that it is in accordance with the Constitution and operative and hence, unless the said provision is struck down, it is inappropriate for this Court to grant the interim order as prayed for by the appellants enabling them to contest the election.
In the circumstances, the prayer made in these appeals being against the interim order granted in W.P. Nos.2332-2333 of 2019, the same is rejected and consequently, the appeals stand dismissed.
Sd/-
ACTING CHIEF JUSTICE sac* Sd/- JUDGE