Karnataka High Court
Shri Durgadas Nagappa Moger vs The State Of Karnataka on 16 August, 2023
Bench: Sachin Shankar Byssmj
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WP No. 104727 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 104727 OF 2023 (CS-EL/M)
BETWEEN:
1. SHRI DURGADAS NAGAPPA MOGER,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: ALVEKODI, SHIRALI POST,
TQ: BHATKAL, DIST: UTTARA KANNADA,
PIN CODE-581354.
2. SMT. LAKSHMI DURGADAS MOGER,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: ALVEKODI, SHIRALI POST,
TQ: BHATKAL, DIST: UTTARA KANNADA,
PIN CODE-581354.
3. SHRI MAHADEV GOVIND MOGER,
AGE: 53 YEARS, OCC: BUSINESS,
R/O: ALVEKODI, SHIRALI POST,
TQ: BHATKAL, DIST: UTTARA KANNADA,
PIN CODE-581354.
YASHAVANT
NARAYANKAR
...PETITIONERS
Digitally signed by (BY SRI VENKATESH M. KHARVI, ADVOCATE)
YASHAVANT
NARAYANKAR
Location: DHARWAD
Date: 2023.08.18 AND:
17:42:40 -0700
1. THE STATE OF KARNATAKA,
R/BY IT'S SECRETARY,
DEPARTMENT OF CO OPERATIVE SOCIETIES,
M.S. BUILDING, BANGALORE-560006.
2. THE REGISTRAR OF CO OPERATIVE SOCIETIES,
GOVERNMENT OF KARNATAKA,
NO.1 ALI ASKER ROAD, BANGALORE-560 001.
3. THE ELECTION AUTHORITY,
3RD FLOOR, A-BLOCK, TTMC BUILDING,
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WP No. 104727 of 2023
SHANTI NAGAR, BENGALURU.
BY ITS COMMISSIONER-560 027.
4. DISTRICT CO-OPERATIVE ELECTION OFFICER AND
DEPUTY REGISTER OF CO-OPERATIVE SOCIETIES,
KARWAR, DIST: UTTARA KANNADA-581 301.
5. RETURNING OFFICER,
ALAVEKODI FISHERMEN'S CO-OPERATIVE SOCIETY PVT,
ALAVEKODI, SHIRALI, TQ: BHATKAL AND CO-OPERATIVE
DEVELOPING OFFICER, BHATKAL, DIST: UTTAR
KANNADA.
6. THE CHIEF EXECUTIVE OFFICER,
ALAVEKODI FISHERMEN'S CO-OPERATIVE SOCIETY PVT,
LIMITED, ALVEKODI, TQ: BHATKAL, DIST: UTTAR
KANNADA- 581354.
...RESPONDENTS
(BY SRI SHIVAPRABHU S. HIREMATH, AGA FOR R2 AND R4; NOTICE
R3 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS
OR ANY ORDER OR IN THE NATURE OF CERTIORARI TO QUASH THE
IMPUGNED FINAL ELIGIBLE VOTER LIST ISSUED BY RESPONDENT
NO. 6 VIDE ANNEXURE-E DATED. NIL OF THE RESPONDENT NO. 5
SOCIETY; ISSUE A WRIT OF CERTIORARI TO QUASH THE ELECTION
NOTICE/CALENDAR OF EVENTS ISSUED BY RESPONDENT NO.5 VIDE
ANNEXURE-F DATED. 19/07/2023 AND ISSUE FRESH NOTIFICATION
ACCORDING TO LAW; THAT THE HON'BLE COURT ISSUE WRIT OF
MANDAMUS TO DIRECTED THE RESPONDENTS TO MAKE FRESH LIST
INCLUDING PETITIONER NAME SIN THE SOCIETY LIST AND MAKE
FRESH ELECTION IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
The learned counsel appearing for the petitioners and
the learned AGA would fairly submit before the Court that
the relief sought in the instant petition does not survive for
consideration and is squarely covered by the judgment
rendered by the Co-ordinate Bench of this Court in
W.P.No.8502/2022 C/W W.P.No.8477/2022.
2. The Co-ordinate Bench of this Court while
disposing of WP No.8502/2022 along with WP
No.8477/2022 at paragraph 10 and 12 has observed as
follows:
"10. These provisions do not leave any room
for doubt that an excluded member, with the
publication of the Draft Eligible Electoral List, must
have an opportunity by way of an individual notice
to file objections on exclusion from the Electoral
List. It must be shown that the concerned Chief
Executive has prepared and sent notice to the
affected members. The Public Notice dated
8.11.2021 does not meet these requirements. In
fact, it is admitted on behalf of the respondents
that there are deficiencies in the preparation of the
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Final Electoral Roll after the publication of the Draft
Eligible Electoral List, and the petitioners have not
been issued with individual notices.
12. It follows from this decision that the
adjudication of all questions must be as provided
under Section 70(2) of the Co-operative Societies
Act. However, in the present case the respondents
admit that there are deficiencies in finalization of
Final Electoral List. The petitioners are admittedly
not issued with individual notice as required under
the provisions of Rule 13-D (2-A) of the Co-
operative Societies Rules; the petitioners have now
cast their votes in the elections on 23.04.2022; the
petitioners are not given the opportunity to show
cause against the allegations that they have
created documents. The respondents, despite
admitting deficiencies in finalisation of the Final
Electoral List, want to invoke the rule of alternative
remedy. This Court is of the considered view that,
in the pecularities of this case, the writ petitions
should be disposed of with directions to the
concerned respondent to announce results counting
even the votes cast by the petitioners and with
liberty to all the concerned to avail remedy under
Section 70(2) of the Act if aggrieved by the results.
If such remedy is availed raising a dispute,
exclusion of votes of those petitioners who are
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guilty of fraud can also be considered based on the
material that will be placed on record."
3. Since the petition is identically placed and the
relief sought by the petitioners is identical, I am of the view
that the writ petition deserves to be disposed of in terms of
the order passed by the Co-ordinate Bench of this Court in
WP No.8502/2022 along with WP No.8477/2022 disposed
of on 07.06.2022 and accordingly the following:
ORDER
i) Writ petition is disposed of in terms of the order
passed by the Coordinate Bench of this Court in
WP No.8502/2022 along with WP No.8477/2022
disposed of on 07.06.2022 and the returning
officer is directed to announce the results of the
elections that were held to the post of Board of
members of the respondent-Society forthwith,
including the votes casted by the petitioners in
the petition.
ii) The petitioners as well as the concerned who are
aggrieved by the results so announced are at
liberty to avail the remedy under Section 70(2) of
the Act of 1959. All contentions urged in these
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writ petition by the parties concerned are left
open for consideration in the appropriate
proceedings if commenced.
iii) In view of disposal of the writ petition, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of accordingly.
Sd/-
JUDGE
NBM
