Karnataka High Court
Doddagoud S/O Rudragoud Pateel vs The State Of Karnataka on 20 December, 2024
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NC: 2024:KHC-D:18575
WP No. 107770 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.107770 OF 2024 (CS-EL/M)
BETWEEN:
1. DODDAGOUD S/O. RUDRAGOUD PATEEL,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: KODA, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO. 12, M No.2005
2. SHIVAYOGI
S/O. BASANAGOUDA KABBAKKI,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: KODA, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO. 52, M No.3588
3. LOKANAGOUDA
S/O. BASANAGOUDA KABBAKKI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: KODA, TQ: HIREKERUR
Digitally signed
by BHARATHI DIST: HAVERI-581111,
S SL. NO.53, M No.3589.
Location: HIGH
COURT OF 4. JAKANACHARI
KARNATAKA S/O. PARAMESHWARAPPA KAMMAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: KODA, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO.104, M No.7008.
5. RUDRAPPA
S/O. BASALINGAPPA HAMSABHAVI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: HIREKERUR
DIST: HAVERI-581111.
SL. NO.169, M No.1642.
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WP No. 107770 of 2024
6. VISHWANATH S/O. RUDRAPPA BASUR,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO.170, M No.2038.
7. MALLESHAPPA
S/O. BANGARAPPA BANGARER,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO.171, M No.3478.
8. SIDDAPPA S/O. NAGAPPA BASUR,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: HIREKERUR,
DIST: HAVERI-581111,
SL. NO.172, M No.3527.
9. SANNAGOUDA
S/O. NINGANAGOUDA GURANIGOUDRA,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: GANGAPUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
SL. NO.172, M No.3527.
...PETITIONERS
(BY SRI VEERESH GADDADA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF CO- OPERATION
M.S.BUILDING, BENGALURU - 580 001.
2. THE STATE CO- OPERATIVE
ELECTION AUTHORITY,
3RD FOLLR, A BLOCK SHANTI NAGAR,
TTMC BUILDING,
BENGALURU - 560 002.
REPRESENTED BY ITS COMMISSIONER
3. THE HEAD QUARTERS ASSISTANT,
AND ELECTION OFFICER OF
THE BELOW THE TALUKA LEVAL
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WP No. 107770 of 2024
AREA OF OPERATION OF THE
PRATHAMIK KRUSHI PATTIN
SAHAKARI SANGH NIYANIT.,
OFFICE OF THE JOINT REGISTRAR
OF CO- OPRATIVE SOCIETIES,
BELAGAVI REGION,
BELAGAVI, PIN:590 001.
4. THE RETURNING OFICER,
PRATHAMIK KRUSHI PATTIN
SAHAKARI SANGH
NIYAMIT, HIREKERUR. TALUK: HIREKERUR,
DIST: HAVERI - 581 111.
5. PRATHAMIK KRUSHI
PATTIN SAHAKARI SANGH,
NIYAMIT, HIREKERUR, TALUK: HIREKERUR,
DIST: HAVERI - 581 111.
REPRESENTED BY ITS CHIEF EXECUTIVE.
...RESPONDENTS
(BY SRI MALA D. BHUTE, AGA FOR R1;
SRI G.V.BHARAMAGOUDAR, ADVOCATE FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OF
APPROPRIATE NATURE TO CERTIORARI TO QUASH THE IMPUGNED
FINAL ELIGIBLE FINAL BARROWER VOTER LIST PUBLISHED BY THE
4TH RESPONDENT VIDE ANNEXURE - E AND IMPUGNED FINAL NON
ELIGIBLE BARROWER VOTER LIST PUBLISHED BY THE RESPONDENT
VIDE ANNEXURE-D DATED 08.08.2024 RESPECTIVELY IN THE
INTEREST OF JUSTICE AND EQUITY. ISSUE A WRIT OF MANDAMUS
DIRECTING THE RESPONDENTS TO PUBLISH FRESH FINAL ELIGIBLE
VOTER LIST BY INCLUDING THE NAMES OF THE PETITIONERS IN
THE FINAL ELIGIBLE VOTER LIST IN THE ELECTION TO THE
COMMITTEE OF MANAGEMENT OF THE 5TH RESPONDENT SOCIETY
SCHEDULE TO BE HELD ON 29/12/2024 IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present writ petition is filed seeking for the following reliefs:
"WHEREFORE, the petitioners pray that this Hon'ble Court may kindly be pleased to:-
A) Issue a writ of appropriate nature to certiorari to quash the impugned final eligible final borrower voter list published by the 4th respondent vide ANNEXURE-E and impugned final non eligible borrower voter list published by the respondent vide ANNEXURE-D dated 08/08/2024 respectively in the interest of justice and equity.
B) Issue a writ of mandamus directing the Respondents to publish fresh final ELIGIBLE voter list by including the names of the Petitioners in the final eligible voter list in the election to the committee of management of the 5th respondent society schedule to be held on 29/12/2024 in the interest of justice and equity.
C) Pass such other orders as this Hon'ble Court deems fit in the facts and circumstances of the case, including costs, in the interest of justice and equity."
2. It is the contention of the petitioners that the petitioners are borrowers and members of the 5th respondent/Society. It is the further case of the petitioners that there are 248 members amongst the borrowers and 39 -5- NC: 2024:KHC-D:18575 WP No. 107770 of 2024 members have been notified as eligible voters and 209 as ineligible voters in terms of Annexure-D to the writ petition.
3. The petitioners being 10 in number are seeking to cast their votes in the elections scheduled to be held on 29.12.2024 pursuant to the calendar of events dated 04.12.2024 (Annexure-A to the writ petition). It is forthcoming from a perusal of the writ petition that the petitioners are borrowers. A perusal of the averments made in the writ petition further discloses that there are members of the 5th respondent - Society who are non borrowers and there are various categories of reservations. However, the relevant details/particulars of reservations, number of borrowers/non borrower members etc., are not forthcoming. Further, the petitioners being 9 in number, their participation/non-
participation would not make difference to the elections that is scheduled to be held.
4. It is relevant to note that a Co-Ordinate Bench of this Court in the case of Sri B. Ganganna and Others vs. The State of Karnataka, Department of Co-operation and -6- NC: 2024:KHC-D:18575 WP No. 107770 of 2024 Others1 after consideration of the various judgments framed the following points for consideration:
(a) Whether a writ petition under Article 226 of the Constitution India is maintainable (before the publication of the calendar of events 70 of under Rule 14) to redo the voters' list for violation of Rule 13-D(2-A) (of the Rules, 1960, in preparing the eligible and ineligible voters' list?
(b) Whether the authority acting under Section 70(2)(c) of the Act, 1959 can decide the validity of the electoral roll vis-à-vis Rule 13-D(2- A) le of Rules, 1960?
(c) Whether the judgments of co-
ordinate Bench of this Court MOHAMMAD BEARY & OTHERS vs. THE STATE OF KARNATAKA & OTHERS2 and H.S. RAJU AND OTHERS vs. STATE OF KARNATAKA AND OTHERS3 are per incurium and contrary to the law in ELECTION COMMISSION OF INDIA THROUGH SECRETARY vs. ASHOK KUMAR AND OTHERS4."
4.1. This Court while answering the said questions has held as follows:
"22. On a cursory reading of the above-mentioned provisions, it is evident that the role of the Co-Operative Election Authority under the scheme of the Act, 1959 and the Rules 1960, in conducting the election to the board of a co-operative society is all-pervasive. Right from the stage of preparing the eligible and ineligible voters' list till the announcement of results, the Co- Operative Election Authority has a predominant role to 1 ILR 2024 KAR 1901 2 Writ petition No.29271/2023 & Connected matters) 3 2022 (4) AKR 775 4 (2000)8 SCC 216 -7- NC: 2024:KHC-D:18575 WP No. 107770 of 2024 play in not only conducting the elections to the board of a co-operative society but also in finalising the electoral roll with reference to right to vote and disqualification to vote. This aspect is to be kept in mind while answering the questions raised in the petition.
26. Having considered the predominant role of the Co-Operative Election Authority right from the stage of preparing the electoral roll, finalising the same after hearing the objections, publication of calendar of events and conducting the elections, and having considered the nature of the vote of member in a co-operative society, before proceeding to answer the question whether there can be a challenge to the electoral roll in a petition under Article 226 of the Constitution of India, before the publication of the calendar of events on the premise that the said roll is published in violation of Rule 13-D(2-A), the Court has to consider if any, statutory remedy is available to question the violation of provisions of the Act, 1959 and the Rules, 1960 in preparing the eligible and ineligible voters' list.
28. The plain grammatical meaning of the expression "any dispute arising in connection with the election" itself makes abundantly clear that the Authority under Section 70(2)(c) of the Act, 1959 can decide any dispute in connection with the election of the members of the board of a co-operative society. In addition, as can be noticed from Section 70(2)(c), unlike the provisions in the enactments like The Karnataka Municipalities Act, 1964, Karnataka Gram Swaraj and Panchayat Raj Act, 1993, and even the Representation of People Act, 1951, which provide for election dispute on specific grounds enumerated in the provision, in Section 70(2)(c), the challenge to the election to the Board of a co-operative society is not restricted to certain specific grounds. Thus, there can be no room for any doubt whatsoever that the Section 70(2)(c) of Act, 1959 is wide enough to cover all questions in connection with Section 20 (a-iv) (a-v) and Rule 13-D (2-A) referred to above.
29. However, a word of caution is needed here. The right to vote and the disqualification to vote in the election to the board of the co-operative society is not just dependent on the procedure to be followed under Rule 13-D(2-A) of the Rules. The right to vote or -8- NC: 2024:KHC-D:18575 WP No. 107770 of 2024 ineligibility to vote depends on the members meeting, the eligibility criteria prescribed under Section 20(a-iv) and (a-v). Non-compliance with the mandatory procedures prescribed under Rule 13-D(2-A) for preparation of voters' list ipso facto will not make the ineligible voter, eligible to vote. Eligibility to vote is also required to be demonstrated. It is quite possible that even if Rule 13-D92-A) is not followed, the list may conform to Section 20(a-iv) and (a-v) of the Act, 1959. Thus, apart from demonstrating that the Rule 130D is not complied, the member has to demonstrate that the is eligible to vote but should also demonstrate that the faulty voters' list made and impact on the election results.
30. It is also relevant to note that non- compliance of some part of Rule 13-D(2-A), may close the window provided to repay the dues within the time fixed under Rule 13-D(2-A). It will take away the opportunity to be an eligible voter or an opportunity to contest. Losing a chance to contest an election if the nomination paper is rejected on the premise that the candidate's name is not in the electoral roll can also be questioned under Section 70 of the Act, 1959.
33. Admittedly, Section 70(2)(c) does not specify the grounds on which an election to the board of a co- operative society can be set aside. Assuming that there is a vacuum as to what kind of relief can be granted under Section 70(2)(c), applying the principles contained in Section 100(1)(d-iv) of Act of 1951, and following the ratio in T.S.PATIL vs. THE J.R.C.S. AND OTHERS5 and CHANNE GOWDA AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS6 and HAYAT BEIG vs. MUNIVENKATE GOWDA AND OTHERS7, the non-compliance of Rule 13-D(2-A) of Rules, 1960 can be read as a ground available under Section 70(2)(c) of Act, 1959 to challenge the election to the board of a co- operative society. Thus, the Authority under Section 70 of the Act, 1959 can also look into the violation of the provisions of the Act, 1959 and Rules, 1960, applicable to the election to the board of a co-operative society. If, 5 ILR 2007 KAR 491 6 1975 (2) Kar.L.J.235 7 (1972) 1 Mys.L.J.121 -9- NC: 2024:KHC-D:18575 WP No. 107770 of 2024 it is established that the electoral roll is prepared in violation of the mandatory rules and that the result of the election is affected on account of faulty electoral roll, then, the Authority under the Act is competent to pass an appropriate order on the election by assessing the impact of faulty electoral roll on the outcome of the election. This being the position, this Court is of the view that the judgment rendered in T S PATIL5 does not come to the aid of the petitioners. On the other hand, the principle laid down in the said judgment will enable the Authority under Section 70 to examine the violation of Rule 13-D(2-A) of Rules, 1960 as well.
40. Whether the preparation of the electoral roll is part of an election is the question answered by the Apex Court in SHRI SANT SADGURU JANARDAN SWAMI (MOINGIRI MAHARAJ) SAHAKARI DURGHA UTPADAK SANSTHA AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS8. The Apex Court has analyzed the scheme of the Maharashtra Co-operative Societies Rules concerning the preparation of the electoral roll and the process of filing objections to the ineligible voter's list. The Apex Court has taken the view that the preparation of the electoral roll is also an intermediate stage in the election.
41. The provisions of the Rules, 1960, in so far as the conduct of elections are complete code in itself. The said judgment is indeed rendered interpreting the provisions of the Maharashtra Co-Operative Societies Act and Rules. It is also true that the procedures under the said Act and Rules in preparing the electoral roll are different from the one provided in the Act, 1959 and Rules, 1960. However, the fact that both enactments provide an adjudicatory mechanism before finalizing the final electoral roll and also the fact that an independent authority other than the co-operative society is assigned with the role of preparing the electoral rolls and conducting elections, the underlying philosophy in both Rules in so far as conducting elections to the board of a co-operative society is by and large the same.
44. In the light of the reasons recorded above, this Court is of the view that as a general principle, the 8 (2001) 8 SCC 509
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NC: 2024:KHC-D:18575 WP No. 107770 of 2024 writ petition to challenge the electoral roll published for holding elections to the board of a co-operative society is not maintainable. However, this Court is not holding that the remedy under Article 226 of the Constitution of India is completely ruled out. There may be situations, in the facts and circumstances of a given case, the High Court in the exercise of plenary jurisdiction under Article 226 of the Constitution of India may have to step into avert a total miscarriage of justice in preparing the electoral roll. It is not desirable to spell out those circumstances in this petition. Suffice it to say that the facts obtained in this petition do not warrant such exercise.
50. For the reasons recorded, this Court concludes as under:
(a) The preparation of electoral roll under Rule, 13-D(2-A) of the Karnataka Co-
Operative Rules 1960 is an integral part of the election process in the context of a question whether the writ petition is maintainable when the challenge is laid to the procedure initiated for preparing electoral roll.
(b) In a dispute under Section 70(2)(c) of the Karnataka Co-operative Societies Act, 1959, the Authority under Section 70 can decide the question on the validity of electoral roll prepared under the Rules, 1960 and its impact on the election.
(c) The judgments in MOHAMMAD BEARY2 and H.S. RAJU3 are not per incurium
(d) The writ petition under Article 226 of Constitution of India to challenge the electoral roll on the ground of non compliance of Rule 13-D(2-A) of Rules, may lie in exceptional cases."
(emphasis supplied)
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5. In view of the settled position of law as noticed by this Court as referred to above, the present writ petition is disposed of reserving liberty to the petitioners to avail the remedy under Section 70 of the Karnataka Co-operative Societies Act, 1959, since they have failed to demonstrate exceptional circumstances for granting relief in exercise of the extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
SD/-
(C.M. POONACHA) JUDGE PMP/CT-ASC List No.: 1 Sl No.: 36