Karnataka High Court

Sri. Sri N H Sripad Rao vs The State Of Karnataka on 29 July, 2022

Bench: Acting Chief Justice, S Vishwajith Shetty

                          1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF JULY 2022

                      PRESENT

            THE HON'BLE MR. ALOK ARADHE
                ACTING CHIEF JUSTICE

                         AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

             W.A. NO.420 OF 2022 (CS-RES)
                          IN
             W.P.No.243 OF 2022 (CS-RES)
                         C/W
             W.A. NO.421 OF 2022 (CS-RES)
                          IN
             W.P.NO.233 OF 2022 (CS-RES)

IN W.A. NO.420/2022 IN W.P. NO.243/2022

BETWEEN:

SRI. SRI. N.H. SRIPAD RAO
S/O DEVAPPA HEGDE
DIRECTOR, SHIMOGA DAVANGERE AND CHITRADURGA
DISTRICT CO-OPERATIVE MILK PRODUCERS
UNION, SHIMOGA DISTRICT 577418.
                                     ... APPELLANT
(BY MR. K. DIWAKARA, SR. COUNSEL FOR
    MR. HITESH GOWDA B.J. ADV.,)

AND:

1.     THE STATE OF KARNATAKA
       DEPARTMENT OF CO-OPERATIVE
       VIDHANA SOUDH, BENGALURU 560001
       REP BY ITS PRINCIPAL SECRETARY.
                           2



2.   THE DEPUTY COMMISSIONER
     SHIMOGA DISTRICT, SHIMOGA 577418.

3.   THE RETURNING OFFICER
     SHIVMOGA DAVANGERE
     AND CHITRADURGA DISTRICT
     CO-OPERATIVE MILK PRODUCERS UNION
     SHIVAMOGA DISTRICT 577 418.

4.   SHIMOGA DAVANGERE AND CHITRADURGA
     DISTRICT CO-OPERATIVE MILK PRODUCERS
     UNION, SHIMOGA DISTRICT 577418
     REP BY ITS CEO.

5.   THE ASSISTANT REGISTRAR OF
     CO-OPERATIVE SOCIETIES
     DAVANGERE SUB DIVISION
     OPPOSITE TO ANJANEYA TEMPLE, VIDYANAGAR
     DAVANGERE, DAVANGERE DISTRICT
     Ist STAGE, SAGAR, SHIMOGA DISTRICT 577 201.

6.   THE STATE CO-OPERATIVE ELECTION AUTHORITY
     3rd FLOOR, TTMC A BLOCK, SHANTINAGAR
     BENGALURU 560027
     REP BY ITS SECRETARY.

7.   KANCHUGARANAHALLI MILK PRODUCERS
     CO-OPERATIVE SOCIETY
     KANCHUGARANAHALLI POST
     SHIKARIPUR TALUK, SHIMOGA DISTRICT
     REP. BY ITS SECRETARY-577201.

8.   SMT. S. MANJULA
     ASSISTANT REGISTRAR OF
     CO-OPERATIVE SOCIETIES
     ANJANEYA TEMPLE
     NEAR ANJANEYA TEMPLE, DAVANAGERE.

9.   SRI. RAVICHANDRA NAYAK
     RETURNING OFFICER, SHIMUL
     ALSO PRINCIPAL DISTRICT TRAINING SCHOOL
                           3



      VINOBHANAGAR , SHIMOGA 577 201.

10.   SRI. T.V. PRAKASH
      ASSISTANT COMMISSIONER SHIMOGA
      ALSO RETURNING OFFICER
      SHIMUL, SHIMOGA 577 201.

11.   SRI. VIKRAM M. PATIL
      S/O MALLIKARJUNA GOWDA
      AGED ABOUT 42 YEARS
      BHIMANERE, TANNIGERE POST
      CHNNAGIRI TALUK
      DAVANGERE DISTRICT-577 213.

12.   SRI. H.K. BASAPPA
      S/O LATE BASAPPA
      AGED ABOUT 54 YEARS
      KANCHUGARANAHALLI
      DAVANAGERE DISTRICT-577 213.

                                     ... RESPONDENTS
(BY MR. R. SUBRAMANYA, ADDL. AG A/W
  MRS. VANI H, AGA FOR R1-R3 & R5
    MR. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
    MR. VARUN J. PATIL, ADV., C/R12)
                          ---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THIS WRIT APPEAL AND SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.243/2022 DATED 28/04/2022, AND CONSEQUENTLY DISMISS THE WRIT PETITION.

IN W.A. NO.421/2022 IN W.P. NO.233/2022

BETWEEN:

SRI. SRI. N.H. SRIPAD RAO S/O DEVAPPA HEGDE AGED ABOUT 55 YEARS DIRECTOR, SHIMOGA DAVANGERE AND CHITRADURGA

DISTRICT CO-OPERATIVE MILK PRODUCER UNION, SHIMOGA DISTRICT 577418.

... APPELLANT (BY MR. ASHOK HARNAHALLI, SR. COUNSEL FOR MR. MAHESH, ADV.,)

AND:

1. THE STATE OF KARNATAKA DEPATMENT OF C- OPERATION VIDHANA SOUDHA, BANGALORE - 560001 REP. BY ITS PRINCIPAL SECRETARY.

2. THE DEPUTY COMMISSIONER SHIMOGA DISTRICT, SHIMOGA 577418.

3. THE RETURNING OFFICER SHIMOGA DAVVANGERE AND CHITRADUGA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION SHIMOGA DISTICT -577418.

4. SHIMOGA DAVANGERE AND CHITARDUGA DISTRICT, CO-OPEATIVE MILK PRODUCERS UNION, SHIMOGA DISTRICT -577418 REP. BY ITS CEO.

5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES SAGAR, SUB DIVISION, JOSEPH NAGAR 1ST STAGE, SAGAR, SHIMOGA DISTRICT-577201.

6. THE STATE CO-OPEATIVE ELECTION AUTHORITY 3RD FLOOR, TTMC A BLOCK, SHANTINAGAR BANGALOE -560027, REP. BY ITS SECRETARY.

7. HIREJUMBUR MILK PRODUCER CO-OPEATIVE SOCIETY, HIREJUMBU POST, SHIKAIPUR TALUK SHIMOGA DISTRICT, REP. BY ITS SECRETARY.

8. SRI. SHASHIKUMAR

ROUTE OFFICER SHIKARIPUR TALUK SHIMOGA DAVANGEE AND CHITRADUGA DISTRICT CO-OPERATIVE MILK PRODUCERS UNION AND ALSO SPECIAL OFFICER, HIREJUMBUR MILK PRODUCER CO-OPERATIVE SOCIETY.

9. SRI. K.K. KIRAN KUMAR ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES B.H. ROAD, SAGAR SHIMOGA.

10. SRI. RAVICHANDRA NAYAK RETURNING OFFICER, SHIMUL ALSO PRINCIPAL DISTRICT TRAINING SCHOOL VINOBHANAGAR, SHIMOGA.

11. SRI. T.V. PRAKASH ASSISTANT COMMISSIONER SHIMOGA ALSO RETURNING OFFICER SHIMUL SHIMOGA.

12. SRI. HARISH N.D.

S/O NAGAPPA AGED ABOUT 45 YEARS AGRAHARA MUCHADI POST SHIKARIPURA TALUK SHIMOGA DISTRICT.

13. SRI. SHIVASHANKARAPPA .T S/O T. ESHWARAPPA AGED ABOUT 56 YEARS DIRECTOR SHIMUL HIREJAMBUR SHIKARIPURA TALUK SHIMOGA DISTRICT 577 428.

14. SRI. B.M. MUTYUNJAYA S/O MOHANAPPA AGED ABOUT 42 YEARS HIRJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

15. SRI. J. MALTHESHAPPA S/O BHARMAYYA AGED ABOUT 62 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

16. SRI. T. SHEKARAPPA S/O BASAVARAYAPPA AGED ABOUT 69 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

17. SRI. H. MAHESHAPPA S/O GURUSHANTAPPA AGED ABOUT 56 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

18. SRI. T. KIRANKUMAR S/O SHIVAMURTHYGOWDA AGED ABOUT 47 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

19. SRI. HANUMANTHAPPA S/O RUDRAPPA AGED ABOUT 56 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TALUK, SHIMOGA DISTRICT 577 427.

20. SRI. M. NAGARAJ S/O CHANDRAPPA AGED ABOUT 48 YEARS HIREJAMBURU VILLAGE SHIKARIPURA TQ, SHIVAMOGGA 577427.

21. SRI. S. OMKARAPPA S/O SHIVAPPA AGED ABOUT 44 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TQ, SHIVAMOGA 577427.

22. SRI. HANUMANTHAPPA KASAMBI S/O HANUMANTHAPPA AGED ABOUT 52 YEARS R/AT HIREJAMBUR VILLAGE SHIKARIPURA TQ, SHIVAMOGA 577427.

23. SMT. HIRIYAKSHAMMA W/O GANESHAPPA AGED ABOUT 56 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TQ, SHIVAMOGA 577427.

24. SMT. ANUSUYAMMA W/O SHIVAPPA AGED ABOUT 60 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TQ, SHIVAMOGA 577427.

25. SRI. JAYAPPA S/O HANUMANTAPPA AGED ABOUT 49 YEARS HIREJAMBUR VILLAGE SHIKARIPURA TQ, SHIVAMOGA 577427.

... RESPONDENTS (BY MR. R. SUBRAMANYA, ADDL. AG A/W MRS. VANI H, AGA FOR R1-R3 & R5 MR. JAYA KUMAR S. PATIL, SR. COUNSEL FOR MR. A. MAHAMMED TAHIR, ADV., FOR C/R13)

---

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THIS WRIT APPEAL AND SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.233/2022 DATED 28/04/2022, AND CONSEQUENTLY DISMISS THE WRIT PETITION.

THESE WRIT APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These appeals arise out of orders dated

28.04.2022 passed by learned Single Judge in

W.P.No.233/2022 and W.P.243/2022. Since, common

issue arise for consideration in these appeals, they

were heard analogously and are being decided by this

common judgment. For the facility of reference, we

shall advert to the facts involved in these appeals

separately.

2. The respondent No.12 in W.A.No.420/2022

was elected Director of Kanchugaranahalli Milk

Products Society (hereinafter referred to as 'the

primary society' for short) . The aforesaid respondent

is also an elected Director of respondent No.4,

Shimoga, Davanagere and Chitradurga District

Cooperative Milk Producers Union, Shimoga

(hereinafter referred to as 'Milk Union' for short),

which is sponsored by primary society. The

respondent No.12 is also Vice President of the Milk

Union. A notice dated 27.12.2021 was issued to

aforesaid respondent fixing the date of appearance as

30.12.2021, which was affixed on the notice board of

primary society at 8.30 p.m.

3. The respondent No.12 appeared on

30.12.2021 and sought time. However, the case was

posted for 31.12.2021. On 31.12.2021, the petitioner

filed an application seeking to engage the services of

an Advocate. However, an order of disqualification

dated 31.12.2021 was passed. The said order was

neither communicated to respondent No.12 nor the

primary society but the same was communicated to

Managing Director of Milk Union.

4. The respondent No.12 challenged the order

dated 31.12.2021 in a writ petition viz.,

W.P.No.243/2022. The respondent No.12 also sought

a writ of certiorari for quashing the minutes of

meeting dated 01.01.2022, wherein appellant was

elected as President of the Milk Union. The said writ

petition preferred by respondent No.12 was allowed

by an order dated 28.04.2022 and the impugned order

dated 31.12.2021 passed by the Assistant Registrar,

Cooperative Societies disqualifying respondent No.12

was quashed and election of the appellant as

President to the Milk Union was quashed. The learned

Single Judge further directed that election to the post

of Milk Union shall be conducted expeditiously in

accordance with law. In the aforesaid factual

background, W.A.No.420/2022 has been filed.

5. The respondent No.13 in W.A.No.421/2022

was elected as a Director of Hirejambur Milk Producer

Co-operative Society, Hirejumbu Post, Shikaipur

Taluk Shimoga District (hereinafter referred to as

'the primary society' for short). Shimvaogga,

Davanagere and Chitradurga District Cooperative Milk

Producers Union, Shimoga (hereinafter referred to

as 'Milk Union' for short), which is sponsored by

primary society. The office of primary society fell

vacant and election notice was issued on 04.11.2021

by which election was scheduled to be held on

20.11.2021.

6. The respondent No.13 along with one other

Director filed W.P.No.20470/2021, in which an order

of nomination of a person as Director was challenged.

In the said writ petition, an interim order was granted

on 18.11.2021. An order of disqualification was

passed by the Assistant Registrar on 28.04.2017,

which was challenged by the appellant in

W.P.No.21342/2017, in which an ad interim order

was granted. The aforesaid writ petition was

subsequently dismissed by an order dated 17.11.2021

on the ground of availability of alternative remedy.

7. The Returning Officer by a communication

dated 17.11.2011 sought a clarification whether the

election to the post of President could be held as code

of conduct was issued to holding the election to the

Legislative council. The authority on the next date i.e.,

on 18.11.2021 clarified that code of conduct would

not be an impediment in holding the election of

President of office of Milk Union. Again on 18.11.2021

itself the Election Officer again sought a clarification

with regard to postponement of election on the ground

that elections to the post of Kannada Sahitya Parishad

and Vokkaligara Sangha was likely to be held. The

authority by a communication dated 19.11.2021

informed that in case, law and order situation arises,

action can be taken under Rule 14H of Karnataka

Cooperative Societies Rules.

8. The Returning Officer passed an order on

19.11.2021 postponing the election. Thereafter, the

appellant filed an appeal against order of his

disqualification, in which ad interim stay was granted.

The respondent No.13 was disqualified by an order

dated 31.12.2021 on the ground that reserve fund

contemplated under Section 47(2) of the Karnataka

Cooperative Societies Act, (hereinafter referred to as

'the Act' for short) was not kept in separate deposit.

Thereafter, the elections were held on 01.01.2012 in

which the appellant was elected. The respondent

No.13 filed W.P.No.233/2022, in which the order of

disqualification and the election of appellant as

President of Milk Union vide resolution dated

01.01.2022 was assailed. The learned Single Judge

further directed that election to the post of Milk Union

shall be conducted expeditiously in accordance with

law. In the aforesaid factual background,

W.A.No.421/2022 has been filed.

9. Learned Senior counsel for the appellants

submitted that the learned Single Judge grossly erred

in entertaining the writ petition and in not relegating

the respondent Nos.12 and 13 to the alternative

remedy provided under the Act. It is further submitted

that learned Single Judge has not assailed any reason

to set aside the election of the appellants. In support

of aforesaid submissions, reliance has been placed on

decisions in 'JAYAMUTHU VS. STATE ELECTION

COMMISION FRO CO-OPEARATION, KARNATAKA

STATE CO-OPERATIVE HOUSING FEDERATION AND

ORS., ILR 2018 KAR 3671, 'NANJUNDASWAMY VS.

ASSISTANT REGISTRAR OF CO-OPERATIVE

SOCIETIES', ILR 1992 KAR 979, 'K.BHOPAL VS.

JOINT REGISTRAR OF COOPERATIVE SOCIETIES

& ORS., W.A.NO.6444/2017.

10. On the other hand learned Senior counsel

for respondent Nos.12 and 13 submitted that

alternative remedy is not an efficacious remedy in the

facts and circumstances of the case. It is further

submitted that no opportunity to respondent No.12

was afforded before passing an order of

disqualification. It is further submitted that the action

for disqualification was taken in hot haste and for

extraneous considerations. It is also submitted that

the allegation against respondent No.13 in

W.A.No.421/2022 is not that fund was not available

in the account of the Society. It is further submitted

that in the facts of the case, the learned Single Judge

is justified in quashing the orders and in issuing the

direction to hold fresh election to the post of President

of Milk Union. In support of aforesaid submissions,

reliance has been placed on decisions in 'STATE OF

MADHYA PRADESH AND OTHERS VS. SANJAY

NAGAYACH AND OTHERS', (2013) 7 SCC 25, ' RAVI

YASHWANT BHOIR VS. DISTRICT COLLECTOR

RAIGAD AND OTHERS', (2012 4 SCC 407, '

TARLOCHAN DEV SHARMA VS. STATE OF PUNJAB

AND OTHERS', (2001) 6 SCC 260, 'SHARDA

KAILASH MITTAL VS. STATE OF MADHYA

PRADESH AND OTHERS', (2010) 2 SCC 319,

'FULJIT KAUR VS. STATE OF PUNJAB AND

OTHERS', (2010) 11 SCC 455, 'NANJUNDASWAMY

VS. ASSISTANT REGISTRAR OF COOPERATIVE

SOCIETIES', ILR 1992 KAR 979, 'DR.S.P.KAPOOR

VS. STATE OF HIMACHAL PRADESH AND OTHERS,

(1981) 4 SCC 716, 'WHIRLPOOL COPORATION VS.

REGISTRAR OF TRADEMARKS, MUMBAI AND

OTHERS', (1998) 8 SCC 1, 'JAYARAJBHAI

JAYANTIBHAI PATEL VS. ANILBHAI NATUBHAI

PATEL AND OTHERS', (2006) 8 SCC 200, and 'APPA

SAHEB, R. KERAKALAMATTI VS. ADDITIONAL

REGISTRAR OF CO-OPERATIVE SOCIETIES IN

KARNATAKA AND OTHERS', AIR 1985 KAR 202.

11. On the other hand learned Additional

Advocate General submitted that the learned Single

Judge ought to have relegated respondents 12 and 13

to avail of the remedy provided under the Act and was

not justified in interfering with the orders of

disqualification and in setting aside the election of the

appellants in the appeals. In support of aforesaid

submissions, reliance has been placed on decisions in

'UMESH SHIVAPPA AMBI & ORS. VS. ANGADI

SHEKARA BASAPPA & ORS', (1998) 4 SCC 529,

JASPAL SINGH ARORA VS. STATE OF M.P. & ORS.,

(1998) 9 SCC 594 and 'AVTAR SINGH HIT VS.

DELHI SIKJH GURDWARA MANAGEMENT

COMMITTEE & ORS', (2006) 8 SCC 487.

12. We have considered the submissions made

on both sides and have perused the record. 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 ordinarily no

interference should be made. In N.P. PONNUSWAMI

v. RETURNING OFFICER - AIR 1952 SC 64, a

Constitution Bench of Supreme Court held as under:

"The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate

stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court."

13. Similarly, in UMESH SHIVAPPA AMBI &

ORS (supra), it has been held that once the election is

over, challenge to the election has to be made by

preferring an election petition. Similar view was taken

in JASPAL SINGH ARORA (supra) and KURAPATI

MARIADAS (supra) as well as AVATAR SINGH HIT

(supra). Similar view has been taken in WEST

BENGAL STATE ELECTION COMMISSION v.

COMMUNIST PARTY OF INDIA (MARXIST) - (2018)

18 SCC 141. Thus, the legal proposition is well

established that where a right or liability is created by

a statute which gives a special remedy for enforcing