Karnataka High Court
Nanjundaswamy vs Assistant Registrar Of Co-Operative ... on 26 February, 1992
Equivalent citations: ILR1992KAR979
Bench: Chief Justice, Shivaraj Patil
ORDER S.P. Bharucha, C.J.
1. The Writ Petition itself is referred to the Full Bench for hearing and final disposal.
2. The Writ petitioner is a member of the third respondent, which is a Co-operative Bank, registered under the Karnataka Co-operative Societies Act, 1959. The Writ petitioner had filed a nomination paper for being elected upon the Committee of Management of the third respondent. At the time of scrutiny of the nomination papers an objection was raised, that the Writ petitioner was a partner of a partnership firm called Lakshmi Financers and that, therefore, his nomination ought to be rejected. The petitioner brought various documents to the knowledge of the Returning Officer to rebut the objection. However, the objection was upheld. The Writ Petition was filed to quash the order of the Returning Officer on the ground that he had erred in considering the documents produced by the Writ petitioner.
3. The learned single Judge, when the Writ Petition came up before him for Preliminary Hearing, referred it to a Division Bench in view of the conflicting Decisions of two Division Benches of this Court. When the matter came up before the Division Bench, the Division Bench noted that there was on the one hand the Judgment in MARUTHI v. STATE OF KARNATAKA, and on the other hand the Judgment in B. GURUMALLAPPA v. STATE OF KARNATAKA, . The Division Bench was prime facie of the view that Section 70(2)(c) of the Act and the Decision of the Full Bench in STATE OF KARNATAKA v. N.A. NAGENDRAPPA, could be held to be a bar to the entertainment of a Writ Petition in an election dispute under the Act. It thought it proper to have the conflict resolved by a larger Bench, and the Writ Petition was referred to a Full Bench.
4. In Maruthi's case, the Division Bench placed reliance upon the Judgment of the Supreme Court in S.T. MUTHUSAMI v. K. NATARAJAN AND Ors., and held that as an alternative and effective remedy was available to the appellant and as the law provided for the resolution of the dispute relating to the election by a Special Tribunal and as the policy of law was to have the disputes about the special rights created by the Karnataka Municipalities Act, 1954, decided as expeditioulsy as may be by a Special Tribunal, it was not just and appropriate to exercise jurisdiction under Article 226 or 227 of the Constitution and interfere with the election process which had already commenced.
5. In Gurumallappa's case it was found that the Returning Officer was proposing to hold an election on the basis of a calendar of events that had been issued about seven years earlier although three of the candidates who had filed their nominations pursuant to that calendar of events had died. The Division Bench held that the action of the Election Officer was a nullity and, after referring to the Judgment of the King's Bench in RE BARNES CORPORATION, EX PARTE MUTTER, 1933(1) KB 668 held, in the light thereof, that even though there was a provision for filing an election petition, since it was not an efficacious remedy, a Writ in the nature of Mandamus could be issued to hold a fresh election.
6. The Division Bench also referred to the Full Bench Judgment in Nagendrappa's case, where it was held that there was no constitutional bar to avail of the remedy under Articles 226 or 227 of the Constitution to call in question the validity of a Delimitation of Constituencies Notification issued by non-compliance with Section 5(5) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, by the Deputy Commissioner and the elections to seats in a Mandal Panchayat held pursuant thereto. The Full Bench took the view that the extraordinary remedy of a writ Petition under Articles 226 or 227 of the Constitution did not become available for questioning the validity of such a Notification after issue of the notification of the election in such constituencies or to call in question the election of returned candidates to seats in such constituencies on the ground of invalidity of the Delimitation of Constituencies Notification.
7. Our attention was also invited by Counsel on behalf of the Writ petitioner to the Judgment of a Division Bench in L. RAMAKRISHNAPPA v. PRESIDING OFFICER, ILR 1991 KAR 4431 where also it was held that Article 226 of the Constitution confers power upon the High Court to issue a Writ for the enforcement of a fundamental right or for any other purpose. The principle laid down by the Supreme Court was that in respect of election matters, unless an extraordinary case was made out, a petition under Article 226 should not be entertained. This clearly meant that a petition under Article 226 of the Constitution challenging the legality of the actions taken or the orders made in the course of an election to a local authority or any other body on the ground of violation of law was maintainable, but should not be entertained by the High Court unless the violation of law made out was such as would justify the interference under Article 226 immediately to prevent abuse of power and waste of public time and money and the alternative remedy by way of election petition after the election was not an efficacious remedy. The Division Bench also observed, and upon this observation stress was laid, that as far as rejection of a nomination paper was concerned, it stood on a different footing and in an election petition the relief, which could be granted in a Writ Petition, could not be given, so that the Court could interfere under Article 226 in such cases.
8. Our attention was drawn by learned Counsel on behalf of the petitioner to the provisions of Section 70 of the Act in support of his submission that there was no effective alternative remedy available to the petitioner.
Section 70, so far as it is relevant, reads:
"Nowrthstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management, or the business of a co-operative society arises... such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
For the purposes of Sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely:-
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." .
Emphasis was also laid upon Section 70A, which provides periods of limitation and specifies a period of thirty days from the date of declaration of the result of such election when the dispute relates thereto. It was submitted, therefore, that there was no remedy available to the petitioner prior to the holding of the election and that remedy was no efficacious alternative remedy.
9. The law, in our view, has been laid down by the Supreme Court in Muthusami's case. The Supreme Court accepted the view set out by a Full Bench of the Madhya Pradesh High Court, which said this: "The law therefore is that there is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies, such as, Municipalities, Panchayats and the like, but, the High Courts in exercise of their discretion should decline to invoke the writ jurisdiction in an election dispute provided the alternative remedy of an ELECTION petition was available."
10. The remedy of an election petition is the remedy that is normally available in election disputes. The principle of law is that once the election process is begun it should not be interfered with. The alternative remedy of an election petition is clearly available to the Writ petitioner under Section 70 of the Act.
11. We see really no divergence of opinion between the Judgments in Maruthi's case and in Gurumallappa's case. Maruthi's case lays down the law as we have set it out. Gurumallappa's case is an illustration of the principle that the High Court has the power to interfere in election disputes and shall exercise that power only in the most extraordinary circumstances. The action of the Election Officer in that case to hold an election upon the basis of a calendar of events issued seven years back although three candidates who had filed their nominations pursuant thereto had died was such extraordinary circumstance. The observation of the Division Bench that the provision for filing an election petition was not an efficacious remedy and a Writ in the nature of Mandamus to hold a fresh election could be issued must be read in the light of those extraordinary circumstances. All that was meant to be conveyed was that in those extraordinary circumstances the provision for filing an election petition would not do justice.
12. No extraordinary circumstance exists here to persuade us to exercise our discretion in the Writ petitioner's favour.
13. In fact, the Writ Petition could not have been entertained as the issue could not have been resolved without an investigation into facts.
For the reasons aforesaid, the Writ Petition is dismissed.