Karnataka High Court
Bhimappa S/O Sidagoud Magadum vs The Deputy Commissioner on 3 November, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED T HIS THE 03 R D DAY OF NOVEMB ER 2020
B EFORE
THE HON'B LE MR. JU STICE ASHOK S. KINAG I
W.P.NO.148379/2020 (CS-EL/M)
BETWEEN :
B HIMAPPA S/ O S IDAGOUD MAGADUM
AGE : 63 YEARS, OCC. AGRICULTU RE,
THE PRES IDENT OF PRATHAMIKA KRISHI
PATT INA SAHAKARI B ANK LIMITED,
B ANAHAT TI, T Q. RAB AKAVI-B ANAHATI,
DIST: B AGALAKOTRE.
.. PETITIONER
(B Y SRI F.V.PATIL, ADVOCATE.)
AN D :
1. THE DEPUTY COMMISSIONER,
B AGALAKOE/EL ECTION OFF ICER TO
HOLD ELECTIONS TO THE BAGALAKOTE DISTRICT
CENTRAL CO-OPERATIVE B ANK, BAGALAKOTE,
TQ. & DIST. B AGALAKOTE.
2. THE RETURNING OFFICER,
B AGALAKOTE DIST RICT CENT RAL CO-OPERAT IVE
B ANK, BAGALAKOTE.
3. THE DEPUTY REGISTRAR OF CO-OPERATIVE
SOCIET IES, B AGALAKOTE,
TQ. & DIST. B AGALAKOTE.
4. B AGALAKOTE DIST RICT CENT RAL CO-OPERAT IVE
B ANK,
NAVANAGAR, B AGALAKOT RE,
TQ. & DIST. REP. BY ITS MANAGING DIRECTOR,
B AGALAKOTE, TQ. & DIST. B AGALAKOTE.
5. SIDDAPPA KALLA PPA SAVADI,
DELEGATE OF PRA THAMIKA KRISHI P AT TINA
2
SAHAKARI B ANK LIMIT ED, HOSU R,
TQ. RABAKAVI B ANAHATI,
DIST. B AGALAKOTE.
6. PRATHAMIKA KR IS HI PATT INA SAHAKARI,
B ANK LIMITED, HOSUR, TQ. RABHAKAVI-
B ANAHATTI,
DIST BAGALAKOTRE, REP. B Y ITS CHIEF
EX ECUTIVE,
HOSU R, TQ. RAB AKAVI- BANAHATTI,
DIST: B AGALAKOTE.
7. PRATHAMIKA KR IS HI PAT INA SAHAK ARI BANK,
LIM IT ED, HIR EPAD ASALAGI, T Q. JAMAKHANDI,
DIST BAGALAKOE, REP. B Y ITS CHIEF EX ECU TIVE,
HIR EPADASALA GI, T Q. JAMKHANDI,
DIST: B AGALAKOTE.
.. RESPONDENTS
(B Y SRI D.N.NANJU NDAREDDY, SENIOR COU NSEL
FOR SRI PRAS HAN T S.KADADEVAR, ADV. FOR R5,
SMT .K.VIDYAVATI M.KOTTU RSHETTAR, AAG FOR
SRI SHIVAPRAB HU S.HIREMATH, AGA FOR R3)
THIS PETIT ION IS FILED U NDER ART ICLES 226 &
227 OF THE CONSTITUT ION OF INDIA PRAY ING TH IS
COU RT TO ISSU E WRIT IN T HE NATURE OF
CERTIORAR I TO QU ASH THE IMPUG NED VOTERS L IST
DATED 18.1 0.2020 IN RESPECT OF RABAKAVI
B ANAHAT TI TALUK CONSTITU ENCY , PRE PARED B Y THE
RESPONDENT N O.3 AND A PP ROVED BY THE
RESPONDENT NO.1 VIDE ANNEX URE-C SO FAR IT
RELAT ES TO THE INCLU SION OF THE NAME OF THE 5 T H
RESPONDENT FOR THE PURPOSE OF CONT ESTING AND
CAST ING HIS V OTE IN THE EN SU ING ELECT IONS
SCHEDULED ON 05.11.2020 PURSU ANT TO ANNEXU RE-
D AND SU CH OTHER RELIEFS.
THIS PET IT ION C OMING ON F OR ORDERS TH IS
DAY, THE COU RT MADE T HE FOLLOWING:
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: ORDER :
The petitioner has filed this writ petition seeking to issue writ in the nature of certiorari to quash the impugned voters list dated 18.10.2020 in respect of Rabakavi Banahatti Taluka constituency prepared by the 3rd respondent and approved by the 1 s t respondent vide Annexure-C so far as it relates to the inclusion of the name of the 5 t h respondent for the purpose of contesting and casting his vote in the ensuing elections scheduled on 05.11.2020 and also sought for relief of quo warranto restraining the 5 t h respondent from contesting and casting his vote in Rabakavi Banahatti taluk constituency as a delegatee of the 6th respondent.
2. Brief facts of the case are that, the petitioner is an elected Director, Chairman and a delegatee sent by the 7th respondent-society who is a member of the 4th respondent. 4 Similarly, the 5 t h respondent claims to be the Director and delegatee of the 6 t h respondent- Society and for the purpose of contesting and to cast vote for the post of Directors of the 4 t h respondent-Bank. The 4 t h respondent is a federal society registered under the provisions of the Karnataka Co-operative Societies Act, 1959 ("hereinafter referred to as "the Act, 1959" for short).
3. That all the primary level co-operative societies situated within the district of Bagalakote are the members who have got right to elect eight of its Directors from Bagalakote, Badami, Hungund, Jamkhandi, Mudhol, Bilagi, Rabakavi-Banahatti and Ilkal Taluks by sending their delegatee for the purpose of contest and casting their votes in terms of Sub Section (3) of Section 21 of the Act, 1959. In Rabakavi- Banahatti Taluka, there are 26 Primary Co- operative Societies are eligible to cast their 5 votes to elect one Director from the said taluka. The petitioner being a delegate of the 7th respondent has got right to contest and exercise his vote for the post of Directors of the 4 t h respondent-Bank.
4. The 5 t h Respondent is the permanent resident of Hirepadasalagi village in Jamkhandi, where he has got agricultural lands. He became the member of the 7 t h respondent by enrolling as a member of the 7 t h respondent-Society. He continued to be a member right from the inception up to this day. The 5 t h respondent got enrolled himself as a member of the 6th respondent-Bank. In view of Section 17 of the Act 1959, the 5 t h respondent ceases to be a member of the 6 t h respondent-Society.
5. The 2 n d respondent issued voters list including the names of 6 t h and 7 t h respondents- Societies, as for as the 6th respondent is concerned, the 5 t h respondent is delegatee the 6 6 t h respondent to contest and cast the vote on behalf of the 6th respondent-Society. The petitioner being aggrieved by the voters list including the name of the 5 t h respondent as a delegate of 6 t h respondent has filed this writ petition.
6. Heard learned counsel Sri F.V.Patil appearing for the petitioner and learned Senior Counsel Sri D.N.Nanjudareddy for Sri Prashant S.Kadadevar learned counsel, appearing for the 5th respondent and also learned Additional Government Advocate for State.
7. Learned counsel for the petitioner submits that, the petitioner is enrolled as a member of 6th respondent and the 7th respondent-Societies. He submits that, 5th respondent cannot be a member of more than one society. He relies on Section 17 of the Act 1959, 5 t h respondent ceases to be a member of 6 t h respondent-Society. He submits that, the 5 t h 7 respondent has no right to represent on behalf of the 6 t h respondent as he has deemed to have been disqualified as per Sub Section (2) of Section 17 of the Act 1959. Hence, he submits that the Returning Officer has committed an error in including the name of the 5 t h respondent as delegatee of 6 t h respondent. Hence, on the above said grounds the petitioners prays to allow the writ petition.
8. Per contra, learned Senior Counsel appearing for the 5 t h respondent submits that, the 5 t h respondent was a member of the 7 t h respondent. The 5 t h respondent had tendered his resignation on 10.02.2019 to the 7 t h respondent and the 7th respondent has accepted the resignation of the 5th respondent by its resolution dated 15.02.2019 and certificate was issued accepting the resignation.
9. The 5th respondent made an application to the 6 t h respondent for enrolling as 8 a member of the 6t h respondent. The 6th respondent enrolled the 5th respondent as a member of 6th respondent-Society. On 15.07.2020, the 5th respondent became the Director of the 6 t h respondent. Name of the 5 t h respondent is included in the voters list as a representative/delegetee of the 6 t h respondent. He further submits that on 05.10.2020, the calendar of events is issued by notification and elections scheduled to be held on 05.11.2020. To buttress his arguments, he relies upon the judgments of Co-Ordinate Bench of this Court in W.P.No.9190/2015, W.P.No.32762/2015 and W.P.No.21818/2019. He submits that there is a disputed question of fact involved in the present case. He further submits that the petitioner has got an alternative remedy under Sub Section 3 of Section 17 of the Act 1959. Hence on the above said grounds he prays to dismiss the writ petition.
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10. Mrs.K.Vidyavati, learned Additional Advocate General supplements the arguments and place a reliance on the judgment of the Hon'ble Apex Court in the case of Shaji K.Joseph Vs. V.Viswanath and others reported in (2016) 4 Supreme Court Cases 429, wherein the Hon'ble Apex Court has held that the High Court has no right in interfering with the process of election especially when the process of election had started upon publication of the election programme and more particularly when an alternative statutory remedy was available.
11. I have heard submission made by the learned counsel for the parties and perused the records.
12. The 5 t h respondent was a member of the 7 t h respondent-Society. The 5 t h respondent has produced the records to show that he has tendered his resignation/cancellation for the 10 membership of the 7 t h respondent. In order to consider whether a member tenders his resignation, he ceases to be a member of the society, it is necessary to consider section 18A of the Act, reads as under:
18A. Cessation of membership.- A person shall cease to be a member of a co-operative society,-
(a) in the case of an individual, on his or her,-
(i) death;
(ii) resignation;
(iii) disqualification and cessation;
or
iv) transfer of whole of his or her share or interest in the co-operative society to another member;
(b) in the case of a firm, company, co-operative society or corporate body,-
(i) on dissolution of the firm or a corporate body;
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(ii) on winding up of a comp any or a co- operative society."
Sub clause (ii) of Clause (a) of Section 18A provides that in case individual member on his resignation, he ceases to e member of co- operative society.
13. In the present case the 5 t h respondent has produced the copy of resignation/ cancellation of membership tendered by him to the 7 t h respondent. Learned counsel appearing for the 5 t h respondent has tendered the said document along with a memo during the course of hearing. As per Section 18A (a) (ii) of the Act 1959, the 5th respondent tendered his resignation, he ceases to be a member of 7 t h respondent society since from 10.02.2019.
14. Learned counsel for the petitioner submits that, the copy of the resignation/ cancellation produced by the 5th respondent discloses that it is not a resignation, but it is 12 cancellation of membership. From the perusal of the document the nomenclature may be different but the intention of the 5 t h respondent is to resign from the membership of the 7th respondent.
15. The 5 t h respondent has submitted an application to the 6 t h respondent for enrolling as a member of 6 t h respondent-Society. The 5 t h respondent after enrolling as a member of the 6 t h respondent-Society, got elected as a Director of the 6 t h respondent. The 5 t h respondent is the member of the 6 t h respondent-Society.
16. In order to consider the submission of the learned counsel for the petitioner regarding disqualification is concerned, it is necessary to examine section 17 of the Act of 1959, reads as under :
"17.Disqualification for membership.
-(1) No person shall be eligible for
admission as a member of a co-
operative society, if he,-
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(a) has applied to be adjudicated an insolvent or is an un discharged in solvent; or
(b) has b een sentenced for any offence, other than an offence of apolitical character or an offence not involving moral turpitude, such sentence not having been reversed or the offence pardoned and a period of five years has not elapsed from d ate of expiry of the sentence.
(c) carries on business of the kind carried on by such co-operative society;
(d) is already a memb er of a co-
operative society carrying on
business of the same kind as itself;
(e) is not eligible for membership und er Section 16;
(f) is a p aid employee of the society or of its financing b ank; or (2) If a member becomes subject to any of the disqualifications specified in sub-section (1), he shall b e deemed 14 to have ceased to be a memb er from the date when the disqualification was incurred .
(2A) If a member fails to fulfill his obligations as a memb er und er the Act, rules or bye-laws, for a continuous period of three years, he shall, on the expiry of such period, cease to be a memb er.
(3) If any q uestion arises as to whether a member is deemed to have ceased or has ceased to be a memb er und er sub-section (2) or (2A), the Registrar may either suo-motu or on a report mad e to him and after giving an opportunity to the person concerned of being heard, decide the question."
17. Sub Section (1) of Section 17 deals with, no person shall be eligible for admission as a member of a co-operative society. Sub Section (2) of Section 17 deals with, deemed disqualification. Sub Section (2-A) of Section 17 deals with, if member fails to fulfill his abdications, he shall cease to be a member of 15 the society. Sub-Section 3 of Section 17 deals with, if any question arises as a member is deemed to have ceased or has ceased to be a member of the society, the Registrar may either suo motu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question.
18. In the present case, the petitioner is challenging the membership of the 5th respondent on the ground that, 5 t h respondent being a member of more than one society. That being so, if at all facts as pleaded by the petitioner are accepted as true, it is a case for enquiring into as to whether 5 t h respondent has been admitted validly as a member of the 6 t h respondent. As per Sub-Section (3) of Section 17 of the Act of 1959, that question has to be raised in the appropriate proceedings in accordance with law. Hence, it is neither 16 appropriate nor just to decide the question in a petition under Article 226 of the Constitution.
19. That the learned counsel appearing for the petitioner submits that, the Returning Officer has wrongly included the name of 5 t h respondent in the electoral rolls as the 5th respondent has incurred a disqualification for the purpose of contesting elections. So far as validity of voters list in electoral roll is concerned, once final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to any one to challenge electoral rolls are illegal in preparation of electoral rolls or inclusion of names in the electoral rolls.
20. The Hon'ble Apex Court in the case of Inderjit Barua and others Vs. Election Commission of India reported in AIR 1984 Supreme Court 1911, with reference to paragraph No.3, which reads as under: 17
"We are of the view that once the final electoral rolls are published and elections are held on the b asis of such electoral rolls, it is not op en to anyone to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under Section 100 of the Rep resentation of People Act, 1951. The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls vide Kab ul Singh v. Kund an Singh. Article 329(b) in our opinion clearly b ars any writ petition challenging the impugned elections on the ground that the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid."
21. A reading of the aforesaid judgment would clearly indicate that the Hon'ble Supreme Court held therein that, there is a clear bar to any writ petition challenge defect in electoral roll.
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22. This Court placing a reliance on the judgment of the Hon'ble Court the case of J.Robert Vs. Ram Jethmalani reported in ILR 1990 (KAR) 1907 held that even if there is an error in preparation of electoral roll the same cannot be quested before the High Court. As far as perpetration of electoral roll, additional or deletion of names etc., are all the matters pertaining to the dispute relating to election of member etc., that any dispute relating to electoral roll cannot be entrained in the writ petition. Hence, this Court holds that dispute relating to electoral roll cannot be entertained.
23. Another contention raised by the learned Senior Counsel appearing for the 5 t h respondent that, once if the calendar of events is issued, the High Court has no right in interfering with the process of election especially when the process of election had started upon publication of the election 19 programme. In the present case, the 2nd respondent-Returning Officer has sissued a notification on 05.10.2020 fixing the calendar of events and the election are scheduled to be held on 05.11.2020.
24. In view of the law laid down by the Hon'ble dApex Court in the case of Shaji K.Joseph Vs. V.Viswanath and others reported in (2016) 4 Supreme Court Cases 429, this Court is of the view that, the High Court has no right in interfering with the process of election especially when the process of election had started upon.
25. This Court holds that dispute in regard to the disqualification of 5th respondent is concerned, the petitioner has to raise before the Registrar under sub-Section (3) of Section 17.
26. The petitioner has no right to question the final electoral roll before the High Court in the writ jurisdiction.
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27. The High Court has no right in interfering in the process of election as the election process is commenced.
28. In view of the above discussion and considering the judgments referred above, I do not find any grounds to interfere with the impugned order. Accordingly writ petition is dismissed.
Sd/-
JUDGE EM/-