Karnataka High Court
Sri Nanjappa K B vs The State Of Karnataka on 31 August, 2023
Author: R Devdas
Bench: R Devdas
-1-
NC: 2023:KHC:31328
WP No. 15553 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 15553 OF 2022 (CS-EL/M)
BETWEEN:
1. SRI NANJAPPA K B
S/O SRI BYREGOWDA
AGED ABOUT 65 YEARS
RESIDING AT NEAR
LAXMINARASIMHA TEMPLE
K R PETE, KIKKERI
MANDYA KARNATAKA - 571423
2. SRI SHANKAR K T
C/O SRI THIMMEGOWDA
AGED ABOUT 59 YEARS
RESIDING AT NO 772
HALE POST OFFICE ROAD
KRISHNARAJEPETE TALUK
KIKKERI, MANDYA
KARNATAKA - 571423
Digitally signed by
JUANITA 3.
THEJESWINI SRI JAGADEESHA
Location: HIGH S/O SRI PAPEGOWDA
COURT OF
KARNATAKA AGED ABOUT 49 YEARS
RESIDING AT NEAR
NARASIMHASWAMY TEMPLE STREET
K R PETE, KIKKERI
MANDYA KARNATAKA - 571423
4. SRILOKESHA K N
S/O SRI NAGARAJA
AGED ABOUT 38 YEARS
RESIDING AT NEAR
NARASIMHASWAMY TEMPLE STREET
K R PETE KIKKERI
MANDYA KARNATAKA - 571423
-2-
NC: 2023:KHC:31328
WP No. 15553 of 2022
5. SMT BHAGYA
W/O SRI RAJASHETTY
AGED ABOUT 40 YEARS
RESIDING AT KERE BEEDI
KRISHNARAJAPETE TALUK
K R PETE KIKKERI
MANDYA KARNATAKA - 571423
6. SMT LAKSHMI
W/O SRI SATHISH
AGED ABOUT 38 YEARS
RESIDING AT MASIDI STREET
KIKKERI, MANDYA
KARNATAKA - 571423
...PETITIONERS
(BY SRI. JAYARAJ D S., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
DEPARTMENT OF CO OPERATIVE SOCIETY
M S BUILDING, DR AMBEDKAR VEEDHI
BENGALURU - 560001
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES
ALI ASKER ROAD, NEAR RAJ BHAVAN
VASANTH NAGAR
BANGALORE - 560052
3. THE DEPUTY REGISTRAR OF
CO-OPERATIVE SOCIETIES
SUBASH NAGAR 1ST CROSS
MANDYA DISTRICT
KARNATAKA - 573201
4. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES
-3-
NC: 2023:KHC:31328
WP No. 15553 of 2022
PANDAVAPURA SUB DIVISION
PANDAVAPURA - 571435
5. THE RETURNING OFFICER
KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LIMITED
K R PETE, KIKKERI
MANDYA KARNATAKA - 571426
REGISTERED UNDER SEC.4 OF THE
CO-OPERATIVE SOCIETIES ACT, 1959.
6. THE SECRETARY
KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LIMITED
KIKKERI, K R PETE
MANDYA KARNATAKA - 571426
7. SRI. VASUDEV. R
S/O SRI. RAAJEGOWDA
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK,
KIKKERI, MANDYA
KARNATAKA - 571423
8. SRI. MANJEGOWDA
S/O SRI. NANJAPPAGOWDA
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
9. SRI. THAMANNA K.G.
S/O SRI. GUNDEGOWDA
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
10. SRI. MOHAN K.M.,
S/O SRI MANJEGOWDA
-4-
NC: 2023:KHC:31328
WP No. 15553 of 2022
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
11 SRI. PUTTANNAIAH
S/O SRI ANANTHAIAH
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
12 SMT. HEMA
W/O SRI. MANJUNATH
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
13 SMT. POORNIMA
W/O SRI RAMESH J
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
14 SMT. MEENAKSHI M.R.
W/O SRI MANJUNATH K.R.
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
15 SRI. NAGARAJ SHETTY
S/O SRI RANGAIAH SHETTY.J
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK, KIKKERI
MANDYA KARNATAKA - 571423
-5-
NC: 2023:KHC:31328
WP No. 15553 of 2022
16 SRI. PARAMESH K.G.
S/O SRI. BHADREGOWDA
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK,
KIKKERI, MANDYA
KARNATAKA - 571423
17 SMT. PALLAVI C.K.,
W/O SRI. MOHAN
DIRECTOR OF KIKKERI MILK PRODUCERS
CO OPERATIVE SOCIETY LTD (MPCS)
K R PETE TALUK,
KIKKERI, MANDYA
KARNATAKA - 571423.
...RESPONDENTS
(BY SRI. SIDHARTH BABURAO, AGA FOR R1 TO R5
SRI. M.R.RAJAGOPAL, SR.COUNSEL ALONG WITH
SRI. H.N. BASAVARAJU, ADVOCATE FOR R7, R8,
R10, R11, R13, R15, R17
R6, R9, R12, R14 & R16 SERVED - UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE UNLAWFUL ELECTION IN ELECTING THE
DIRECTORS - R7 TO 17 TO THE KIKKERI MILK PRODUCERS
CO-OPERATIVE SOCIETY LTD (MPCS) THAT WAS HELD BY THE
MANAGING COMMITTEE OF THE RETURNING OFFICER - R5 ON
24.07.2022 IN TERMS OF THE ELECTION NOTIFICATION DTD
27.07.2021 VIDE ANNEXURE-A AS NULL AND VOID AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING-B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
-6-
NC: 2023:KHC:31328
WP No. 15553 of 2022
ORDER
R.DEVDAS J., (ORAL):
The petitioners are members of Kikkeri Milk Producers Co-operative Societies Ltd., (MPCS), Kikkeri, K.R.Pet Taluk, Mandya District. They are before this Court seeking a writ in the nature of certiorari to quash the election held to the Board of the respondent-Society on 24.07.2022.
2. It is not disputed that an Administrator was appointed to the society during the month of November, 2020 and one extension of six months was also given to the Administrator. Thereafter, a Special Officer was appointed on 05.08.2021 with a mandate to hold elections within a period of six months. Similar extension of six months were granted to the Special Officer by order dated 11.11.2021 at Annexure-J, again with a mandate to ensure elections are held to the Board of the Society. A Returning Officer was appointed by order dated 11.05.2022. The grievance of the petitioners is that after appointment of the Returning Officer, a 'list of ineligible -7- NC: 2023:KHC:31328 WP No. 15553 of 2022 voters' were published without having due regard to the relevant provisions of law including Rule 13 of the Karnataka Co-operative Societies Rules, 1960, and an election notification was issued on 07.07.2022, declaring that the elections would be held on 24.07.2022. Learned Counsel for the petitioners submits that since the 'list of ineligible voters' were published contrary to the requirement of law, the holding of the elections should be declared as illegal. Learned Counsel for the petitioners has pressed into service a decision of a Hon'ble Division Bench in the case of L.Ramakrishnappa Vs. The Presiding Officer, ILR 1991 KAR. 4421.
3. Per contra, Sri.M.R.Rajagopal, learned Senior Counsel appearing on behalf of the contesting respondents No.7 to 17, who were declared elected in the elections conducted on 24.07.2022, would submit that a writ petition under Article 226 of the Constitution of India questioning the election results and seeking a declaration that the election itself is illegal is not maintainable in view -8- NC: 2023:KHC:31328 WP No. 15553 of 2022 of the established position of law that once elections are conducted, the process of elections and declaration of the results can only be questioned by a duly constituted election petition. Learned Senior Counsel would submit that this Court in the case of Sri.Shivashankarappa T and Others Vs. State of Karnataka and Others, in W.P.No.233/2022 and connected matters, had quashed the declaration of results of the elections held to the Board of the respondent-Society therein. However, a Hon'ble Division Bench this Court in an intra-court appeal in the case of Sri.Sri.N.H.Sripad Rao Vs. The State of Karnataka and Others, in W.A.No.420/2022 and connected matters, by order dated 29.07.2022 held that it is well settled in law that once an election is over, challenge to the election has to be made by preferring an election petition and in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution, ordinarily, no interference should be made. It was noticed that in the cases of Umesh Shivappa Ambi and Others Vs. Angadi Shekara Basappa and Others, (1998) 4 SCC 529, Jaspal Sigh Arora Vs. -9- NC: 2023:KHC:31328 WP No. 15553 of 2022 State of M.P., and Others, (1998) 9 SCC 594 and Avtar Singh Hit Vs. Delhi Sikjh Gurdwara Management Committee and others (2006) 8 SCC 487, the Hon'ble Supreme Court held that where a right or liability is created by a statute which gives a special remedy for enforcing the same, the remedy provided by statute must only be availed of.
4. Learned Senior Counsel would further submit that in the present case, out of the six petitioners, four petitioners were placed in the list of ineligible voters, while two petitioners were eligible and they have contested in the elections and have lost. That being the position, it would be impermissible in law to allow the petitioners to question the declaration of results of the elections, more so, at the hands of the two petitioners who have participated in the elections. Insofar as the other four petitioners are concerned, learned Senior Counsel would submit that this Court has been entertaining writ petitions at the instance of many such persons, who have complained that they have been placed in the 'list of
- 10 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 ineligible voters' without affording an opportunity of hearing and in violation of the provisions contained in Rule 13 of the Rules. This Court having noticed a recent decision of a co-ordinate Bench of this Court in the case of H.S.Raju and others Vs. The State of Karnataka and others in W.P.No.8502/2022 and connected matters, decided on 07.06.2022, has been permitting all such writ petitioners who were placed in the 'list of ineligible voters' to contest in the elections and cast their votes in the elections.
5. In that view of the matter, it is submitted that if the petitioners herein were aggrieved of their names being placed in the ineligible voters list, they should have approached this Court with similar grievance and this Court would have permitted the petitioners to participate in the elections and/or cast their votes in the elections. That remedy not being availed of by the petitioners before the elections were held, it would be impermissible for this Court to set aside the results of the elections or hold it illegal. That exercise cannot be undertaken by this Court,
- 11 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 since the petitioners were required to approach the competent authority invoking Section 70 of the Karnataka Co-operative Societies Act, 1959, which is the provision provided to raise a dispute regarding the process of elections or declaration of results of the elections. Learned Senior Counsel would further submit that at the instance of the petitioners, an interim order has been passed by this Court preventing holding of elections to the posts of President and Vice-President of the Board. Therefore, even if the Directors are elected to the Board, the Board is unable to function fully for want of a President and Vice-President, who are the officers empowered to call for meetings and enable the Board to take any decision.
6. Heard Sri. Jayaraj D.S., learned Counsel for the petitioners, Sri.M.R.Rajagopal, learned Senior Counsel appearing on behalf of the contesting respondents No.7 to 17, learned Additional Government Advocate and perused the petition papers.
- 12 -
NC: 2023:KHC:31328 WP No. 15553 of 2022
7. On the question of maintainability of the writ petition, the learned Counsel for the petitioners has sought to place reliance on a decision of the Hon'ble Division Bench of this Court in the case of L.Ramakrishnappa (supra). However, that was a case where the writ petitioners had approached this Court during the process of elections, to be more precise, when the nomination papers were rejected. A learned Single Judge of this Court has dismissed the writ petition on the ground of maintainability. However, the Hon'ble Division Bench had noticed certain decisions, where the provisions contained in Article 329 of the Constitution were sought to be invoked in respect of elections held to co-operative societies. It was noticed that the Apex Court had held that Article 226 confers on High Courts power to issue appropriate writ to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep
- 13 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 of that power. It was therefore held that if we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself.
8. However, this Court should notice that in a subsequent decision of the Apex Court in the case of Election Commission of India Through Secretary Vs. Ashok Kumar and Others, (2000) 8 SCC 216, it has succinctly made a distinct between orders that could be construed as interfering in the process of elections and those that would further the cause of elections. The Hon'ble Supreme Court had held that if any order could be passed by the High Courts which would further the cause of elections and would ensure the holding of the elections in accordance with law, then such orders cannot be construed as orders causing interference in the course of elections. Such orders can be passed by the High Courts.
9. Further the Apex Court has also consistently held that commencing from the case of N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, AIR 1952 SC 64, the celebrated case of the year 1952,
- 14 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 which is holding the field till today, no courts should pass any orders which would cause interference in the course of elections. In that view of the matter, the submission of the learned Counsel for the petitioners to allow the writ petition and declare the elections as illegal, would not be in tune with the judgments cited by the learned Senior Counsel.
10. The Hon'ble Division Bench in the case of Sri.Sri.N.H.Sripadarao, in W.A.No.420/2022 (supra) arising out of the Karnataka Co-Operative Societies Act, has clearly held that once an elections is over, challenge to the election has to be made by preferring an election petition and in exercise of the writ jurisdiction of this Court under Article 226, ordinarily no interference should be made.
11. In another decision of a Hon'ble Division Bench in the case of Jayamuthu Vs. State Election Commission for Co-operation, Karnataka State Co-operative Housing Federation and Others, ILR 2018 KAR 3671, it was held that in the matter of election disputes although the bar
- 15 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 under Article 329(b) of the Constitution is expressed to be applicable to elections held to the Parliament or the State Legislature, nevertheless, the principle emanating from that Article has been applied in respect of all other elections including that of local bodies or authorities constituted by a statute or to bodies formed under a statute. It was held that the law declaring that only election petitions filed before the duly constituted Tribunal/ Courts are the proper forums to entertain even a rejection of nomination papers and the aggrieved party cannot rush to the High Court to file a writ petition under Article 226 of the Constitution of India would apply to cases arising out of the Co-Operative Societies. The decision of a learned Single Judge in dismissing such a writ petition was upheld on the ground of availability of an alternative remedy.
12. In that view of the matter, this Court is of the considered opinion that the prayer made in the writ petition cannot be granted and the writ petition is required
- 16 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 to be dismissed on the ground of maintainability. Consequently, the writ petition stands dismissed.
13. At this juncture, learned Counsel for the petitioners seeks leave of this Court to grant liberty to the petitioners to approach the competent authority under the statute questioning the correctness of the elections held to the respondent-Society. Subject to the law of limitation, the petitioners may approach the competent authority to redress their grievance.
14. Learned Senior Counsel Sri M.R.Rajagopal, would submit that in terms of the interim order dated 04.08.2022 the proposed elections to the post of President and Vice President of the respondent-Society which was scheduled to be held on 06.08.2022 was stayed by this Court. Having regard to the established position of law that if by orders of the court if there is an interruption in the process of election, a direction should be issued to the Returning Officer to proceed from the stage when the elections were stopped by the orders of this Court. In this
- 17 -
NC: 2023:KHC:31328 WP No. 15553 of 2022 regard, attention of this Court is also drawn to paragraph- 38 of the Jayamuttu's case (supra) wherein similar directions were given by the Hon'ble Division Bench to continue the process of elections from the stage where it was interrupted at the hands of this Court.
15. The submission of the learned Senior Counsel is accepted.
16. A direction is hereby issued to the Returning Officer to continue the process of elections to the post of President and Vice President and other office bearers from the stage when it was interrupted that is just prior to 04.08.2022 when orders were passed by this Court.
Ordered accordingly.
17. Pending I.As., if any, stand disposed of.
Sd/-
JUDGE DL/JT