Karnataka High Court
Sri Gurulingayya And Anr vs The State Of Karnataka on 5 December, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 200090 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 200090 OF 2021 (CS-EL/M)
BETWEEN:
1. SRI. GURULINGAYYA
S/O CHANNABASAYYA HIREMATH,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE AND MEMBER,
PKPS, LINGADAHALLI,
TQ: INDI, DIST:VIJAYAPURA.
2. SRI. SANTOSH
S/O GURANAGOWDA PATIL,
AGED ABOUT 38 YEARS,
OCC:AGRICULTURE AND MEMBER,
PKPS, LINGADAHALLI,
TQ: INDI, DIST: VIJAYAPURA.
Digitally signed ...PETITIONERS
by SACHIN
Location: HIGH (BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPT. OF CO-OPERATION,
M.S.BUILDING,
DR.B.R.AMBEDKAR VEEDHI,
BENGALURU-1.
2. THE SECRETARY,
THE CO-OPERATIVE ELECTION AUTHORITY,
III FLOOR, T.T.M.C., 'A' BLOCK,
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WP No. 200090 of 2021
SHANTINAGAR,
BENGALURU-560 027.
3. THE REGISTRAR OF
CO-OPERATIVE SOCIETIES,
ALI ASKAR ROAD,
BANGALORE-560 001.
4. THE CHIEF EXECUTIVE OFFICER,
PKPS LTD., LINGADAHALLI,
TQ: INDI, DIST: VIJAYAPURA-586 209.
5. THE RETURNING OFFICER,
PKPS LTD., LINGADAHALLI,
OFFICE OF THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETIES,
INDI, DIST:VIJAYAPURA-586 209.
6. THE PRESIDENT/SECRETARY,
PRATHAMIKA KRUSHI PATTINA
SAHAKARA SANGHA (PKPS),
LINGADAHALLI, TQ: INDI,
DIST: VIJAYAPURA-586 209.
...RESPONDENTS
(BY SRI. SHIVAKUMAR R. TENGALI, AGA FOR R1 TO R3
AND R5;
SMT. HEMA L. K. ADV. FOR R4 AND R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A)
ISSUE A WRIT OR ORDER, WRIT IN THE NATURE OF
CERTIORARI, QUASHING THE LIST OF INELIGIBLE VOTERS
DATED 24.01.2021 PRODUCED AT ANNEXURE-E, ANNEXURE-F
AND ANNEXURE-G, RESPECTIVELY, PREPARED BY
RESPONDENT NO.4 AND 5; B) ISSUE A WRIT OR ORDER, WRIT
IN THE NATURE OF MANDAMUS, DIRECTING THE RESPONDENT
NO.4 AND 5 TO RE-DO THE ELIGIBLE VOTERS LIST AFRESH,
FOR THE ENSUING ELECTIONS DATED 24.01.2021 TO THE
GOVERNING COUNCIL OF PKPS AND ETC.
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WP No. 200090 of 2021
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners seeking to quash
the ineligible voters list produced at Annexures 'E', 'F' and 'G'
respectively prepared by fourth respondent.
2. Petitioners are holders of agricultural land and
members of Prathmika Krushi Pattina Sahakara Sangha (PKPS),
Lingadahalli village, Taluk Indi, District Vijayapura. Before the
completion of the term of five years of the Governing Council of
PKPS, the audit report was prepared for the year 2019-2020.
According to the audit report, there are totally 681 members in
the Sangha as on 31.03.2020, out of which 163 are agricultural
labour members, 358 are sanna hiduvalidar Members and 160
are dodda hiduvalidars Members in the said Sangha.
Petitioners' names are found at Sl.No.12 and 26 respectively.
The Governing Council-respondent no.5 issued calendar of
events on 15.12.2020 fixing the date of election for the
Governing council on 24.01.2021 and accordingly, a calendar of
events was prepared as provided under Rule 13-D (3)(C)(D) of
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the Karnataka Cooperative Societies Act, 1959 (for short, the
'Act of 1959').
3. It is the grievance of the petitioners that fifth
respondent prepared an ineligible voters list, those never
attended temporary General Body Meeting including 241
members and additional list which was not approved and those
lists contain ineligible voters who are defaulters, who are not
entitled and eligible to cast their votes. This list came to be
prepared by respondent nos.4 and 5 for their convenience is
contrary to the provisions of Act of 1959. Though the
petitioners attended the General Body Meeting, voters list was
prepared which contains ineligible voters, who are not
authorized and never attended the General Body Meeting. So
the petitioners are excluded from the list of eligible voters list.
Hence, the petitioners were aggrieved by the same, due to
which the present petition is filed.
4. It is the contention of learned counsel for
petitioners that the act of respondent nos.4 and 5 in excluding
the petitioners and other eligible members in the list is violative
of the provisions of the Act of 1959 and the Rules of the
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Sangha and creation of a new category ineligible voters list and
temporary members who even did not attend the meeting and
who are the defaulters of the loan, is illegal, improper and the
same is arbitrary.
5. Learned counsel for petitioners admits to the fact
that the election has been conducted unopposed and he has not
questioned the same.
6. After the petitioners approached this Court by order
dated 21.01.2021, this Court permitted "the petitioners to
participate in the electoral process either as a contestants or as
a voters, however the same would be subject to the outcome of
this petition". It is not in dispute that the election has been
conducted on 24.01.2021, the outcome of which is not known
to the counsel for petitioners. Be that as it may, the fact
remains that by virtue of an interim order, the petitioners were
permitted to participate in the electoral process either as a
voters or as contestants in the said election, which was
conducted on 24.01.2021. However, learned counsel for
respondent nos.4 and 6 now submits that though the election
was scheduled to be held on 24.01.2021, since there was no
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opposition to the election and on the nominations filed by some
of the candidates, the election came to be declared unopposed
on 18.01.2021 as stated in statement of objection at paragraph
no.2. Therefore, apparently it is seen that the elections are
conducted and declared unopposed.
7. Learned Additional Government Advocate
representing the respondent nos.1 to 3 and 5/State contends
that the writ petition itself is not maintainable as there is an
alternative and efficacious remedy available under the Act of
1959. He also contends that even as on date of filing of
petition, the last date of filing of nomination, the calendar of
events was published and was over. It is also contended by
learned Additional Government Advocate that in view of the
fact that the elections are declared and candidate is elected
unopposed, there may not be any grievance that would further
survive in the present case.
8. Having heard learned counsels for both the parties,
the point that requires to be decided by this Court whether the
writ petition filed challenging the voters list, eligibility of the
voters, ineligible voters list after publication of calendar of
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events is maintainable by filing a writ petition under Article 226
of the Constitution of India.
9. In catena of judgments, the Hon'ble Apex Court and
this Court it is held time and again that the writ petition would
not be maintainable in election matters once the calendar of
events are published and when there is an alterative efficacious
remedy available under the particular statute, the petitioner will
have to approach and seek remedy under such alternative
forum before approaching this Court otherwise the very
purpose of establishing the Act or the provisions under different
statutes will get frustrated and become redundant.
10. In similar matters, the Coordinate Bench of this
Court in W.P.No.8502/2022 along with W.P.No.8477/2022
dated 07.06.2022 has disposed of the writ petitions relying on
various statutory provisions and taking into consideration the
judgment of Hon'ble Apex Court in the case of Shri Sant
Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugha Utpadak Sanstha and another vs. State of
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Maharashtra and others1. It is relevant to extract the
paragraphs in the said judgment at No.10 and 12.
"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 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 Cooperative
Societies Rules; the petitioners have now cast their
(2001) 8 SCC 509
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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 peculiarities 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 guilty of fraud can also be
considered based on the material that will be placed
on record."
11. Under these circumstances, already the Hon'ble
Apex Court has decided as stated supra and by Co-ordinate
Bench order stated above has disposed of the writ petition
giving liberty to the petitioners to approach the appropriate
forum under Section 70(2) of Act of 1959, the present petition
also would meet the same fate. However, without adverting to
the merits of the matter with regard to the eligibility,
ineligibility of several members and the eligibility of the
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petitioners, this petition requires to be disposed of. Accordingly,
I pass the following :
ORDER
(i) Petition is disposed of.
(ii) The petition would not survive for consideration
for the reason that the election is declared
unopposed pursuant to which there is no
amendment sought or made in this petition for
challenging the same.
(iii) If the petitioners are aggrieved, they are at
liberty to avail the remedy under Section 70(2)
of Act of 1959 and raise all such contentions
that are urged before this Court before the
appropriate forum.
(iv) No order as to costs.
Sd/-
JUDGE
SN
