Karnataka High Court

The Primary Agriculture Credit Co ... vs The State Of Karnataka on 27 October, 2023

Bench: Anant Ramanath Hegde

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                                                       NC: 2023:KHC-D:12615
                                                         WP No. 105903 of 2023




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 27TH DAY OF OCTOBER, 2023

                                              BEFORE
                           THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                            WRIT PETITION NO. 105903 OF 2023 (CS-EL/M)

                      BETWEEN:

                      1.    THE PRIMARY AGRICULTURE CREDIT CO-OPERATIVE
                            SOCIETY LIMITED MUGADI,
                            BY ITS PRESIDENT/DELEGATE,
                            SHRI VEERAYYA S/O. PRABHAYYA MATHPATI,
                            AGE: 58 YEARS, OCC: AGRICULTURE,
                            POST: MAGADI, TQ: SHIRAHATTI,
                            DIST: GADAG, PIN CODE-582117.

                      2.  PRIMARY AGRICULTURAL CREDIT CO-OPERATIVE
                          BALEHOSUR,
                          BY ITS PRESIDENT/DELEGATE
                          SHRI BASAVARAJ S/O. CHINNAPPA HANUMARADDI,
                          AGE: 43 YEARS, OCC: AGRICULTURE,
                          POST: BALEHOSUR, TQ: LAXMESHWAR,
                          DIST: GADAG, PIN CODE. 582210
MOHANKUMAR                                                      ...PETITIONERS
B SHELAR
                      (BY SRI. JAYAKUMAR S PATIL, SENIOR COUNSEL FOR
Digitally signed by   VIDYAVATI M. KOTTURSHETTAR, ADVOCATE)
MOHANKUMAR B
SHELAR
Date: 2023.10.30
17:31:10 +0530        AND:

                      1.    THE STATE OF KARNATAKA
                            DEPARTMENT OF CO-OPERATIVE
                            R/BY ITS UNDER SECRETARY,
                            VIKASA SOUDHA, BENGALURU-5600.

                      2.    THE KARNATAKA CENTRAL CO-OPERATIVE,
                            BANK LIMITED DHAWAD,
                            HEAD OFFICE, P. B. NO.21,
                            SUBHAS ROAD, DHARWAD-580001.
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                                 NC: 2023:KHC-D:12615
                                   WP No. 105903 of 2023




3.   THE RETURNING OFFICER,
     KARNATAKA CENTRAL CO-OPERATIVE BANK
     LIMITED, DHARWAD,
     AND ASSISTANT COMMISSIONER,
     DHARWAD SUB DIVISION,
     DHARWAD-580001.

4.   PRATHAMIKA KRUSHI PATTINA SAHAKARI SANGHA
     NIYAMITA, MAGADI, TQ: SHIRAHATTI,
     DIST: GADAG, PIN CODE-582117,
     BY ITS CHIEF EXECUTIVE OFFICER.

5.   PRATHAMIKA KRUSHI PATTINA SAHAKARI SANGHA
     NIYAMITA, BALEHOSUR,
     TQ. LAXMESHWAR, DIST: GADAG,
     PIN CODE-582210,
     BY ITS CHIEF EXECUTIVE OFFICER.

6.   SUNIL S/O. GANGADHAR MAHANTSHETAR
     AGE: 48 YEARS, OCC: AGRICULTURE,
     R/O. LAXMESHWAR,.

7.   GOVINDA S/O. VENKANGOUDA PATIL,
     AGE: 57 YEARS, OCC: AGRICULTURE,
     P.K.P.S, YALAVATTI, TQ: LAXMESHWAR,
     DIST: GADAG.
                                           ...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 & R3,
SRI. R. H. ANGADI, ADV. FOR R2,
SRI. S. B. PATIL, ADV. FOR R4 AND R5,
SRI. GURUMATH SENIOR COUNSEL FOR SRI. JAGADISH PATIL,
ADV. FOR PROP R6,
SRI. B. SHARANABASAWA, ADV. FOR PROP R7)

     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING THIS COURT TO,
ISSUE A WRIT IN NATURE OF CERTIORARI QUASHING THE
IMPUGNED FINAL NON ELIGIBLE VOTER LIST PUBLISHED BY
THE 2ND AND 3RD RESPONDENTS DATED 14-09-2023 VIDE
ANNEXURE-C AND ISSUE A WRIT OF MANDAMUS DIRECTING
THE RESPONDENTS TO PUBLISH FRESH FINAL ELIGIBLE
VOTERS LIST BY INCLUDING THE NAMES OF THE PETITIONERS
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                                  NC: 2023:KHC-D:12615
                                    WP No. 105903 of 2023




IN THE FINAL ELIGIBLE THE CATEGORY OF PRIMARY
AGRICULTURAL     CREDIT      CO-OPERATIVE    SOCIETY
CONSTITUENCY LIST FOR THE TERM OF 2023-24 SCHEDULED
TO BE HELD ON 30/09/2023 PERMITTING THE PETITIONERS
TO TAKE PART IN THE ELECTION PROCESS INCLUDING TO
CAST THEIR RESPECTIVE VOTES.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:


                          ORDER

In this petition, the petitioners have sought for the

relief of certiorari to quash Annexure-C insofar as holding

that the petitioners are ineligible to vote in the elections

to the Board of Directors of respondent No.2-Co-operative

Bank.

2. The petition is filed mainly on the premise that

the petitioners are held to be ineligible to vote in the

elections to be held on 30th September 2023 to the Board

of respondent No.2-Bank without issuing the notice as

required under Rule 13-D.(2-A) of the Karnataka

Co-operative Societies Rules, 1960 (for short, 'the Rules').

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

3. In terms of the interim order granted by this

Court, the petitioners were permitted to vote in the

election held on 30th September 2023. However, the

results are not yet declared.

4. Sri. Jayakumar S.Patil, learned Senior Counsel

appearing for the petitioners would submit that while

disqualifying the present petitioners from voting in the

said election, the procedure contemplated under Rule 13-

D.(2-A) of the Rules is not followed inasmuch as

individual notices to the petitioners are not issued. He

would also refer to the judgment of a co-ordinate Bench

of this Court in Pratamika Krushi Pattin Sahakar Sangha,

Vadavi Vs. The State of Karnataka & Others, in W.P.

No.106007/2023, disposed of on 11.10.2023, wherein

this Court following the judgment of a co-ordinate Bench

of this Court in W.P. No.8502/2022 and connected

matter, (H.S.Raju & Others Vs. State of Karnataka and

Others, disposed of on 07.06.2022), has passed an order

to count the votes of the petitioners in the said case and

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

it is further made clear that if there is any dispute

subsequent to announcement of results, the said dispute

can be resolved in a petition under Section 70(2) of the

Karnataka Co-operative Societies Act, 1959 (for short,

'the Act').

5. Sri. Gurumath, learned Senior Counsel

appearing for respondent No.6 would submit that Raju's

case (supra) referred to above is per incuriam and it has

failed to take note of real import of the judgment of the

Apex Court in the case of Shri Sant Sadguru Janardan

Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak

Sanstha Vs. State of Maharashtra1. Referring to

paragraph 12 in the said judgment, he would submit that

even if it is noticed that there is any illegality or breach of

Rules while preparing the electoral roll, the election

process cannot be stalled and the same has to be

questioned in an election petition. He would also contend

that the ratio laid down is binding, and petitioners should

(2001)8 SCC 509

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

be directed to approach the authority under Section 70 of

the Act. He would also refer to paragraph 9 of the said

judgment wherein it has been held that in case there is

any dispute regarding preparation of electoral roll, same

has to be raised before a competent authority under

Section 70 and only after exhausting the remedy under

Section 70, an aggrieved party can approach the Writ

Court seeking appropriate relief.

6. Sri. Jayakumar S.Patil, learned Senior Counsel

appearing for the petitioners, by way of reply, would

contend that there is no constitutional bar as such to

entertain a writ petition relating to an election to the

Board of co-operative society and he would further submit

that the in Raju's case (supra), the co-ordinate Bench of

this Court has taken note of the fact that notice relating

to disqualification of a member is not issued as in this

case, and that being the position, the case on hand can

be differentiated on facts as compared to judgment of the

Apex Court referred to above.

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

7. Sri. R.H.Angadi, learned counsel appearing for

respondent No.6 would submit that the writ petition is not

maintainable as an efficacious and alternative remedy is

available by way of an election petition under Section 70

of the Act and thus he would urge that the petition has to

be dismissed.

8. Sri.Jagadish Patil, learned counsel appearing for

respondent No.6 would submit that the alternative

remedy of raising an election dispute is available to the

petitioners as such the petition is not maintainable and

urged to dismiss the petition.

9. This Court has considered the contentions

raised at the Bar.

10. As can be noticed from the records placed

before this Court, documents are not produced before this

Court to show that notices were issued to the petitioners

as required under Rule 13-D.(2-A) of the Rules. Whether

the notice is really issued or whether the notice under

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

Rule 13-D.(2-A) is served on the petitioners are not are

all questions of fact to be decided in a properly instituted

election petition before the appropriate authority and not

in a writ petition.

11. However, prima facie, it appears that the notice

is not issued and this Court is of the view that prima facie

case is made out to substantiate the contention that there

is violation of Rule 13-D.(2-A) of the Rules. Under these

circumstances, this Court is of the view that the ratio laid

down in Raju's case (supra) has to be followed by this

Court.

12. It is also relevant to note that the in W.P.

No.106007/2023, this Court has permitted counting of

votes in the very same election pertaining to very same

constituency where another member of second

respondent co-operative Bank filed a writ petition

challenging the order disqualifying it from voting. The

ground of disqualification in the said writ petition is similar

to the ground of disqualification urged in this writ petition.

NC: 2023:KHC-D:12615 WP No. 105903 of 2023

This order passed by this Court in W.P. No.106007/2023

is not questioned and has attained finality. Under these

circumstances, this Court is of the view that similar order

has to be passed in this writ petition as well.

13. For the aforementioned reasons, the writ

petition is disposed of in terms of the order passed in

W.P. No.106007/2023. Hence, the following:

ORDER

i) Writ petition is 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 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. However, since liberty is reserved to

the aggrieved party to file election dispute, the

Returning Officer is directed to maintain those

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NC: 2023:KHC-D:12615 WP No. 105903 of 2023

disputed votes in a separate ballot box as those

votes would have bearing on the decision of

election 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 this writ

petition by the parties concerned are left open for

consideration in the appropriate proceedings if

commenced.

iii) It is further made clear that this Court has not

expressed any final opinion on the contention of

the parties with regard to service or non-service

of notice on the petitioners before holding the

petitioners are ineligible to vote. All contentions