Karnataka High Court
Basavaraj S/O Annappa Biradar vs The State Of Karnataka on 8 November, 2024
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NC: 2024:KHC-D:16391
WP No. 106576 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106576 OF 2024 (CS-EL/M)
BETWEEN:
BASAVARAJ S/O. ANNAPPA BIRADAR,
AGE: 38 YEARS, OCC: AGRIL.,
R/O: TUNGAL VILLAGE, TQ: JAMKHANDI,
DIST: BAGALKOT - 587 330.
...PETITIONER
(BY SRI KIRANKUMAR CHATTIMATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF CO-OPERATION,
M. S. BUILDING, 6TH FLOOR,
BANGALORE - 01.
2. THE PRATHAMIKA KRISHI PATTINA
Digitally signed
SAHAKARI SANGHA LIMITED.
by SAROJA
HANGARAKI
TUNGAL, TQ: JAMKHANDI,
Location: High DIST: BAGALKOT - 587 330.
Court of
Karnataka REPRESENTED BY ITS SECRETARY.
3. THE CHIEF EXECUTIVE OFFICER,
PRATHAMIKA KRISHI PATTINA
SAHAKARI SANGHA LIMITED,
TUNGAL, TQ: JAMKHANDI - 587 330,
DIST: BAGALKOT.
4. THE RETURNIGN OFFICER TO
THE PRATHAMIKA KRISHI PATTINA
SAHAKARA SANGHA LIMITED,
TUNGAL, TQ: JAMKHANDI,
DIST: BAGALKOT.
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WP No. 106576 of 2024
5. THE DIST. CO OPERATIVE ELECTION
OFFICER AND DEPUTY REGISTRAR OF
CO - OPERATIVE SOCIETY,
BAGALAKOT, DIST: BAGALKOT - 587 101.
6. CO-OPERATIVE ELECTION COMMISSIONER,
RPTD, BY ITS COMMISSIONER,
3RD FLOOR, SHANTI NAGAR, TTMC 'A' BLOCK,
SHANTINAGAR, BANGALORE - 560 027.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A
WRIT IN THE NATURE OF MANDAMUS DIRECTING THE
RESPONDENT NO.1 TO 6 TO INCLUDE THE NAME OF THE
PETITIONER IN THE FINAL ELIGIBLE IN BORROWERS VOTERS
LIST AND TO PERMIT THE PETITIONER TO CONTEST IN THE
ELECTION TO THE COMMITTEE OF MANAGEMENT OF THE 2ND
RESPONDENT SOCIETY SCHEDULE TO BE HELD ON 17/11/2024
AS PER THE CALENDAR OF EVENTS DATED 29/10/2024
PUBLISHED BY THE 4TH RESPONDENT VIDE ANNEXURE-A BY
ALLOWING THIS WRIT PETITION IN THE INTEREST OF JUSTICE.
TO ISSUE WRIT IN THE NATURE OF MANDAMUS DIRECTING THE
4TH RESPONDENT TO DECLARE THE ELECTION RESULTS OF THE
5TH RESPONDENT SOCIETY AFTER COMPLETION OF THE
ELECTION PROCESS IN ACCORDANCE WITH LAW 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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WP No. 106576 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed seeking for the
following reliefs.
i) Issue a writ in the nature of Mandamus
directing the respondent no.1 to 6 to include
the name of the Petitioner in the final eligible
in Borrowers voters list and to permit the
petitioner to contest in the election to the
committee of management of the 2nd
respondent society schedule to be held on
17/11/2024 as per the Calendar of events
dated 29/10/2024 published by the 4th
respondent vide Annexure-A by allowing this
writ petition in the interest of justice.
ii) To issue writ in the nature of mandamus
directing the 4th respondent to declare the
election results of the 5th respondent society
after completion of the election process in
accordance with law.
2. Heard the submissions of learned counsel
Sri Kirankumar Chattimath for the petitioner and
learned HCGP Sri Kritilata R. Patil for respondent No.1.
3. It is vehement contention of the learned
counsel for the petitioner that no notice has been
issued to the petitioner and his name has been
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removed from the voters list and that the permission
be granted to the petitioner to file his nomination,
pursuant to the calendar of events dated 29.10.2024
(Annexure-A).
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 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
ILR 2024 KAR 1901
Writ petition No.29271/2023 & Connected matters)
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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 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
2022 (4) AKR 775
(2000)8 SCC 216
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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 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.
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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, 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
ILR 2007 KAR 491
1975 (2) Kar.L.J.235
(1972) 1 Mys.L.J.121
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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 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
(2001) 8 SCC 509
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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 aforementioned, the present
case is not one where a total miscarriage of justice is
made out. Hence, the above writ petition is dismissed
reserving liberty to the petitioner to avail the remedy
as provided under Section 70 of the Act.
Sd/-
(C.M. POONACHA)
JUDGE
SSP CT-ASC
