Karnataka High Court
Smt P V Kalpana vs The State Of Karnataka on 16 July, 2024
Author: R.Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR.JUSTICE R.DEVDAS
WRIT PETITON NO.7893 OF 2024 (CS-RES)
BETWEEN
SMT. P. V. KALPANA
AGED ABOUT 54 YEARS,
MEMBERSHIP NO 3508
DIRECTOR,
THE BENGALURU ADVOCATES
CO-OPERATIVE SOCIETY,
O/A NO.1625/4, PARK ROAD,
DEVAIAHPARK, RAMMOHANPURA,
BENGALURU-560021.
...PETITIONER
(BY SRI. JAYAKUMAR S PATIL., SR. COUNSEL FOR
SMT. SHARADHA N., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF CO-OPERATION,
VIDHANA SOUDHA,
DR. B. R. AMBEDKAR VEEDHI,
BENGALURU 560001
BY ITS PRINCIPAL SECRETARY
2. THE KARNATAKA STATE CO OPERATIVE
ELECTION AUTHORITY
2ND FLOOR, TTMC, A BLOCK,
SHANTHI NAGAR,
BENGALURU 560027
REPRESENTED BY
ITS COMMISSIONER
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3. THE ELECTION OFFICER CUM
DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES
COOPERATIVE ELELCTION AUTHORITY,
2ND FLOOR, TTMC, A BLOCK,
SHANTHI NAGAR, BENGALURU -560027
4. THE RETURNING OFFICER
BENGALURU ADVOCATES
CO-OPERATIVE SOCIELTY LTD,
CITY CIVIL COURT COMPLEX,
BEHIND CAUVERY BHAVAN,
KEMPEGOWDA ROAD, BENGALURU -560009
5. BENGALURU ADVOCATES
CO-OPERATIVE SOCIELTY LTD,
CITY CIVIL COURT COMPLEX,
BEHIND CAUVERY BHAVAN,
KEMPEGOWDA ROAD,
BENGALURU 560009
BY ITS PRESIDENT SHANKAR T
AGED ABOUT40 YEARS
6. SRI. CHETHAN
MEMBERSHIP NO
PRESENTLY DECLARED TO BE
ELECTED AS TREASURER
ADVOCATES CO-OPERATIVE SOCIETY LTD,
BENGALURU ADVOCATES
CO-OPERATIVE SOCIELTY LTD,
CITY CIVIL COURT COMLEX,
BEHIND CAUVERY BHAVAN,
KEMPEGOWDA ROAD, BENGALURU- 560009.
....RESPONDENTS
(BY SRI. Y.H. VIJAYKUMAR, AAG FOR
SRI. SIDDARTH BABU RAO, AGA FOR R1, R3 & R4
SRI. T.L. KIRAN KUMAR., ADVOCATE FOR R2
SRI. SHIVAMOGGA NAGARAJ H.H., ADVOCATE FOR R5
SRI. D.R. RAVISHANKAR., SR. COUNSEL A/W
SRI. MAHESHCHANDRA B.N., ADVOCATE FOR
SRI. G.S. NAVEEN., ADVOCATE FOR R6)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT BEARING NO.VASAAM/CHUNAVANE/2023-24
DATED 02/03/2024 ISSUED BY THE R4 VIDE ANNEXURE-J AND
DIRECT THE R4-RETURNING OFFICER TO ACCEPT THE
NOMINATION OF THE PETITIONER FOR THE POST OF TREASURER
ANNX-H AND CONDUCT THE ELECTION FROM THE STAGE OF
VOTING OR IN THE ALERNATIVE AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 27.06.2024 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER
The petitioner, an Advocate and an elected Director of the 5th respondent-'The Bengaluru Advocates Co-operative Society Limited' is aggrieved of the rejection of her nomination papers and therefore, she is before this Court with the following prayers:
(i) Quash the endorsement bearing No.Vasaam / chunavane/ 2023-2024 dated 02-03-2024 issued by the 4th respondent vide Annexure-J.
(ii) Direct the 4th respondent the returning officer to accept the nomination of the petitioner for the post of Treasurer (Annexure 'H') and conduct the election from the stage ofvoting or in the alternative.
(iii) Quash the Annexure-K dated 02-03-2024 declaring the results of election of office -4- bearer for the respondent No.5 society in so far as the post of treasurer.
(iv) Direct the Respondent No.4 to hold fresh election for the post of office bearer of Treasurer for the 5th Respondent Society.
(v) Grant such other relief/s as this Hon'ble Court may deems fit and proper to grant in the circumstances of the instant case in the interests of justice and equity.
2. Preliminary objections have been raised at the hands of learned Senior Counsel Sri D.R.Ravishankar, appearing on behalf of the respondent-Society, contending that the writ petition is not maintainable since there is an alternative efficacious remedy available to the petitioner. It is contended that an election dispute can be raised only in terms of Section 70 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act, 1959' for short). In this regard, the learned Senior Counsel sought to place reliance on a recent decision of a Division Bench of this Court in the case of Dr.Madhusudhan Kariganoor and Others Vs. State of Karnataka and Others in W.A.No.200125/2021 and connected matter dated -5- 23.11.2023, decided at the Kalaburagi Bench. It was pointed out that this Court took note of various other decisions including Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha And Another Vs. State of Maharashtra and Others reported in AIR 2001 SC 3982, wherein it was held that preparation of electoral roll being an intermediate stage in the process of election and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It was therefore held that since the election was already held and once the results of the election were declared, it would be open for the aggrieved person to challenge the election of the returned candidate, if aggrieved, by means of an Election Petition before the Election Tribunal.
3. Learned Additional Government Advocate placed reliance on the decision of the Apex Court in the case of Umesh Shivappa Ambi and others Vs. Angadi Shekara -6- Basappa and Others (1998) 4 SCC 529, wherein, having regard to the provisions contained in Section 70 of the Act, 1959, it was held, once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes. Having regard to the provisions contained in Section 70(2)(C) of the Act, 1959, it was held that any dispute arising in connection with the election of a President, Vice President, Chairman, Vice Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the Registrar by raising a dispute before him. The Registrar is required to decide the case in accordance with law. The writ court had dismissed the writ petition while holding that the proper remedy for the petitioner was to file an Election Petition under Section 70 of the Act, 1959. However, the Division Bench, in an intra- court appeal set aside the order of the learned Single Judge and held that the nomination of the petitioner was wrongly -7- rejected. Directions were issued that a fresh calendar of events be published for holding an election. The Apex Court set aside the orders passed by the Division Bench while restoring the judgment of the learned Single Judge. The aggrieved petitioner was relegated to the Registrar.
4. However, learned Senior Counsel Sri Jayakumar S.Patil, appearing on behalf of the petitioner submitted that it is by now well settled that alternative remedy is not to operate as a bar and it does not divest the High Court of its powers under Article 226 of the Constitution. Though ordinarily, a writ petition should not be entertained when an efficacious alternative remedy is provided by law, nevertheless, as held in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1, exceptions to the rule have been carved out as follows:
(a) The writ petition has been filed for the enforcement of a Fundamental Right protected by Part III of the Constitution;
(b) There has been a violation of the principles of natural justice;-8-
(c) The order or proceedings are wholly
without jurisdiction; or
(d) The vires of the legislation is challenged.
5. At this juncture, learned Senior Counsel
Sri.D.R.Ravishankar, pointed out that in the present case, neither of the four circumstances are attracted. It was submitted that right to contest in an election has been declared as not a fundamental right, while it is a statutory right. This is not a case where the petitioner can allege violation of the principles of natural justice. It is not the case of the petitioner that the Returning Officer had no jurisdiction to reject a nomination paper. This is not a case where vires of a legislation are challenged.
6. However, learned Senior Counsel Sri Jayakumar S.Patil, submitted that the Apex Court, in a more recent case, in Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer cum Assessing Authority and Others, 2023 SCC OnLine SC 95, reiterated another class of cases which merit consideration of a dispute at the hands of the High Court, under Article 226 of the Constitution. It was held that if a -9- case raises a pure question of law and if investigation into facts is unnecessary, the High Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of. If the issue raised is pristinely legal requiring determination by the High Court, the parties need not be put through the mill of statutory appeals in the hierarchy. The Apex Court found that in many such cases decided by the Apex Court earlier, including State of U.P. And Others Vs. Indian Hume Pipe Co. Limited (1977) 2 SCC 724; Union of India And Another Vs. State of Haryana and Another (2000) 10 SCC 482 and Assistant Commissioner of State Tax Vs. Commercial Steel Limited 2021 SCC OnLine SC 884, the controversy brought before the High Court was purely legal one and it does not involve disputed questions of fact but only questions of law and therefore, it was held that the high court should decide such controversy instead of dismissing the writ petition on the ground of availability of alternative remedy.
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7. In support of his contention, the learned Senior Counsel submitted that the petitioner is questioning the impugned action of the Returning Officer in rejecting the nomination paper of the petitioner while misreading sub-rule (5) of Rule 14-AG of the Karnataka Co-operative Societies Rules, 1960 (hereinafter referred to as 'the Rules, 1960' for short). The Returning Officer, while interpreting the said provision, is of the opinion that a Director of the Society can propose or second the candidature of not more than one candidate. This Court is therefore, required to give a finding as to the correctness of the interpretation of the provision. In that view of the matter, the learned Senior Counsel submitted that since the controversy brought before this Court is purely a legal one and it does not involve disputed questions of fact, this Court alone can resolve the controversy. On the other hand, if the petitioner is driven to the Assistant Registrar of Co-operative Societies ('ARCS' for short), the petitioner cannot expect the Officer to decide such controversy which involves interpretation of a provision of law. Further, if once an order is passed by the ARCS, the petitioner will be forced to approach the Revisional Authority, -11- viz., the Karnataka Appellate Tribunal. Having regard to the fact that the ARCS are not legally trained minds, it would be a futile exercise to seek resolution of the controversy at the hands of the ARCS.
8. This Court is of the opinion that since preliminary objections are raised regarding the maintainability of the writ petition, the objection is required to be considered as a preliminary issue. Since it is contended that there is an alternative efficacious remedy available to the petitioner, analysis of the word 'efficacious' assumes importance. 'Efficacious', as per the 21st Century Chambers Dictionary means, 'producing or certain to produce, the intended result'. As a noun, 'efficaciousness, efficacity or efficacy' means the power of producing an effect; effectiveness. The Law Lexicon of P.Ramanatha Aiyer, explains - efficacious means able to produce the intended result; that produces or is certain to produce the intended effect. Having regard to the controversy brought before this Court, which requires the knowledge of interpretation of law, which has seemingly caused heartburn and disappointment to many contestants -12- and aspirants, the remedy under Section 70 of the Act, before the Assistant Registrars of Co-operative Societies, cannot be construed as efficacious remedy.
9. A larger bench of the Apex Court in Magadh Sugar And Energy Limited vs. State of Bihar and Others, 2021 SCC OnLine SC 801, has held, while noticing the law laid down in Whirlpool Corporation (supra) and a more recent decision in Radhakrishnan Industries vs. State of Himachal Pradesh, 2021 SCC OnLine SC 334, "an alternative remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case, though ordinarily a writ petition should not be entertained when an efficacious alternative remedy is provided by law; when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particularly statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and in cases where there are disputed questions -13- of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with".
[Emphasis supplied]
10. With the above tenets, as laid down by the Apex Court, this Court should consider the controversy brought before this Court. The Returning Officer has rejected the nomination papers of the petitioner on the ground that the nomination filed by the petitioner to the post of Treasurer was proposed by a Director - G.Manjunath and seconded by a Director - Satish.B. Having regard to the particular Rule, namely sub-rule (5) of Rule 14-AG, of the Rules, 1960, it was pointed out by the Returning Officer that Sri. G.Manjunath, who proposed the nomination of the petitioner had earlier proposed the candidature of another candidate and therefore the nomination is held to be invalid. The controversy therefore is as to whether the interpretation given by the Returning Officer to sub-rule (5) and the -14- proviso thereto is valid or not? The Rules in question were amended and inserted into the Rule book w.e.f. 10.07.2013. This Court has come across many such instances where nomination papers were rejected on such interpretation, while it was pointed out that owing to the small size of the electoral college (the total number of Directors of the Co- operative Societies range from 8 to about 18) and the number of posts of the Board of Directors, which again could be between 4 to 8 and if there are three candidates contesting for each post, the candidates will not have two Directors to propose and second the candidature, if the Rule is interpreted in the manner it is being done presently. However, this Court finds that the legitimate grievances have not been addressed at the hands of the competent authority who are required to consider such disputes raised under Section 70 of the Act, and neither has the issue been resolved by this Court. The obvious reason may be that the term of the Board is not more than five years and the disputes raised by the aggrieved persons are not resolved at the earliest and naturally when once the term ends, the disputes are disposed of as having become infructuous. -15-
11. This Court is therefore of the considered opinion that the issue requires consideration at the hands of this Court. The preliminary issue regarding maintainability of the writ petition is accordingly answered and the preliminary objection is over ruled.
12. The relevant provisions which are germane are as follows:
Rule 14-AG. Election of the Office Bearers:
(1) xxxxxx (2) xxxxxx (3) xxxxxx (4) Not less than two hours before the time fixed for the meeting for the election of the President or Vice President or any other office bearers, any member of the Board who is eligible and desirous of being elected as the President or vice president or any other office bearers, as the case may be, may submit his nomination by delivering the nomination papers in Form XXIV to the Returning Officer. Such nomination shall be proposed by another member of the Board eligible to do so and seconded by a third member of the Board eligible to do so.-16-
(5) No Director shall propose or second under sub-rule (4) more than one candidate for the office of the President or Vice President or any other office-bearer of the Society:
Provided that if any director has proposed or seconded more than one candidate for the office of the President or Vice President or any other office- bearer of the Society, the nomination which is received first shall be considered for scrutiny.
13. The learned Senior Counsel Sri Jayakumar S.Patil, has pointed out to the practical difficulties that may arise if the interpretation sought to be given by the Returning Officer to the provision is accepted. During the course of these proceedings, this Court called upon the learned counsels on both the sides to give information regarding the total number of Directors in the Board of the Society and the number of "Office" for which elections are required to be held, as per the Bye-laws of the Society. This Court is informed that there are 17 Directors in the Board of the Society. There are three posts of office bearers in the Board of the Society, viz., President, Vice President and Treasurer. -17- Learned Senior Counsel submitted that if three candidates seek to contest in each of the posts, then there would be 9 candidates. If the candidature of each of the candidates is to be proposed and seconded by two members who have not proposed or seconded any other candidate, then it requires 18 other members. Though it is true that the contesting candidates can also propose or second the candidature in respect of the other posts for which they have not contested, even in such scenario, it is bound to curtail the freedom of the members of the Board to contest for elections. Such interpretation is not only invalid, on the plain reading of the provision, but also for the fact that it would restrict the rights of the members of the Board to freely contest in the elections.
14. Learned Senior Counsel Sri D.R.Ravishankar, on the other hand, sought to contend that the Rule cannot be interpreted in a different manner just because it is contended that practical difficulties would arise. The Rule is required to be interpreted on its ordinary construction and there is no scope for interpreting the provision, as sought to -18- be done at the hands of the petitioner. At any rate, since factual information is also required to be considered, this Court should enable the competent authority to call for evidence and thereafter proceed to consider the grievance of the petitioner.
15. Sri Y.H.Vijay Kumar, learned Additional Advocate General supported the contentions of the learned Senior Counsel Sri. D.R.Ravishankar. It was submitted that when a statutory remedy is available, the petitioner is necessarily to seek redressal in the manner provided in the statute. It was submitted that the competent authority who are required to consider such disputes in terms of Section 70 of the Act, 1970 are competent and therefore, they should be permitted to consider the grievance of the petitioner. The issue brought before this Court cannot be considered as a pure question of law, since it also requires consideration of certain facts.
16. Heard the learned Senior Counsel Sri Jayakumar. S. Patil for the petitioner, learned Senior Counsel Sri -19- D.R.Ravishankar, for the respondent-Society, learned Additional Advocate General Sri Y.H.Vijay Kumar for the respondent-State and perused the petition papers.
17. The law of interpretations would provide that a provision of law should be read and understood plainly, unless it gives raise to undesirable effect. In Eera Through Dr Manjula Krippendorf Vs. State (NCT of Delhi) And Another reported in (2017) 15 SCC 1333, it is held that when two constructions are reasonably possible, preference should be given to one which helps carry out beneficent purpose of the Act, without unduly expanding the scope of provision. Courts while construing provision must ascertain intention of legislature, since it is an accepted principle that legislature expresses itself with use of correct words and in absence of any ambiguity or resultant consequences does not lead to any absurdity, no other interpretation tool may be looked for in the name of creativity. Another golden rule of interpretation is that while interpreting a provision due regard should be had to each and every word employed in the provision. The interpretation or construction should be -20- such that no word is rendered otiose. Having regard to such established position of law, this Court finds that the use of the word "Office" preceding the posts of the office bearers, can only mean that a Director of the Board who is otherwise eligible to propose or second the candidature is permitted to propose or second not more than one candidate to each "Office". If the intention of the legislature was otherwise, the legislature could have simply provided that no Director shall propose or second more than one candidate. There was no need to employ the word "Office" and name the offices in the provision. It is also necessary to notice that the words "OR" are used in between the posts, which would again indicate that the Directors can propose or second the candidature of a candidate for each of the posts. The usage of the word "Office" preceding the words - the President or Vice President or any other office bearer of the Society assumes significance. In the considered opinion of this Court, the legislature, in its wisdom, has taken into consideration the small size of the electoral college viz., members of the Board who are eligible to propose and second the candidature, and therefore used the word -21- "Office", thereby permitting eligible members of the Board to propose or second the candidature of a candidate in respect of each "Office".
18. A Director is therefore, permitted to propose or second the candidature of a candidate in each of the posts and it cannot be restricted to one post. This interpretation will also remove the practical difficulties, having regard to the small size of the electoral college. This interpretation will also uphold the democratic values, enabling the members of the Board to freely contest in the elections to the posts of the office bearers of the Board. Any other interpretation will not only distort the plain meaning of the provision, but also destroy democratic principles which govern the elections to Co-operative Societies, its Board of Management and the very purpose of establishment of Co-operative Societies.
19. Having arrived at that conclusion, this Court is required to redress the grievance of the petitioner. The undisputed facts are that three candidates, including the petitioner had filed nominations to the post of Treasurer. However, one candidate Sri Santhosh Kumar, withdrew the -22- nomination. Subsequently, after rejecting the nomination of the petitioner, since there was only one candidate respondent No.6-Sri.Chethan, in the fray, the Returning Officer declared the 6th respondent as the successful candidate for the post of Treasurer, unopposed. Therefore, while the rejection of the nomination papers of the petitioner is bad in law, necessary directions are required to be issued to hold the elections to the post of Treasurer, as between the petitioner and the 6th respondent.
20. Before parting with this matter, this Court deems it fit to draw the attention of the State Government to the provision made in the Karnataka Co-operative Societies Act, 1959, for redressal of 'Election Disputes'. The State Legislature has made provision in all the statutes governing the local bodies enabling an independent authority to consider election disputes. In the Karnataka Municipal Corporations Act, 1976, election petitions are to be filed before the District Court having jurisdiction. In the Karnataka Municipalities Act, 1964, the Election Tribunal is the Civil Judge having jurisdiction over the area within which -23- the election is held. In the Karnataka Gram Swaraj and Panchayat Raj Act, 1983, similarly, the Election Tribunal, is the designated Court, meaning the Senior Civil Judge designated for the trial of election disputes. However, in the Karnataka Co-operative Societies Act, 1959, no separate or independent Tribunal is constituted. This Court has come across several instances where allegations are made against the Assistant Registrars of Co-operative Societies and the Deputy Registrars of Co-operative Societies or the Joint Registrars of Co-operative Societies, who weild the power to disqualify a member/Director of a Society and the same officers also constitute the election tribunal. Allegations are that a particular member/ Director is disqualified just before elections and by the time such member/Director secures an order of stay or an order setting aside such disqualification, elections are held, thereby rendering it fait accompli. It is therefore high time that an independent authority/Tribunal is constituted to consider election disputes arising in the Co- operative Societies in the State.
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21. Accordingly, this Court proceeds to pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The impugned endorsement dated 02.03.2024 at Annexure-J issued by the 4th respondent-Returning Officer, is hereby quashed and set aside.
(iii) The 3rd respondent/Election Officer-cum-
Deputy Registrar of Co-operative Societies, is hereby directed to hold the elections for the post of Treasurer in the 5th respondent-
Society, as between the petitioner and the 6th respondent-Sri Chethan.
(iv) The date of election shall be notified to the members of the Board of the 5th respondent-
Society and thereafter eligible members of the Board shall be permitted to cast their votes. Results of the elections shall be declared in accordance with law.
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(v) Since the process of election, as directed hereinabove would be - notification of the date of election; casting of votes, counting and declaration of results, the entire process shall be completed as expeditiously as possible and at any rate within a period of six weeks from the date of receipt of a copy of this order.
A copy of this order shall be forwarded by the Registry to the Principal Secretary to Government, Co-operation Department.
Ordered accordingly.
Sd/-
JUDGE JT/KLY