Karnataka High Court

Sri. S Shivkumar vs Assistant Registrar on 2 May, 2025

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                           WP No. 9378 of 2025




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 2ND DAY OF MAY, 2025
                                                                              R
                                             BEFORE
                      THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                       WRIT PETITION NO. 9378 OF 2025 (CS-EL/M)
                   BETWEEN

                   SRI. S SHIVKUMAR
                   S/O LATE SHANMUGAM
                   AGE 50 YEARS
                   R/O LOKKANAHALLI
                   HANUR TALLUK,
                   CHAMRAJANAGARA DIST.-571440
                                                           ...PETITIONER

                   (BY SRI. M.R. RAJGOPAL., SR. ADVOCATE FOR
                       SRI. H.N. BASAVARAJU., ADVOCATE)

                   AND

                      1. ASSISTANT REGISTRAR
                         CO-OPERATIVE SOCIETY
                         SPS BUILDING, CHAMARAJANAGARA
                         CHAMARAJANAGARA
Digitally signed
by SHWETHA
RAGHAVENDRA
                      2. SRI. THYAGARAJ PRASAD
Location: HIGH
COURT OF                 RETURNING OFFICER,
KARNATAKA                LOKKANAHALLI MILK PRODUCERS
                         CO-OPERATIVE SOCIETY.
                         HANUR TALLUK,
                         CHAMRAJANAGARA DIST.-571440


                      3. LOKKANAHALLI MILK PRODUCERS
                         CO-OPERATIVE SOCIETY.
                         HANUR TALLUK,
                         CHAMRAJANAGARA DIST.-571440
                         REPRESENTED BY ITS
                         CHIEF EXECUTIVE OFFICER
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4. SAMPATTU
   S/O B.N. CHINNAMALLU
   AGE 50 YEARS

5. K. SINDEEL KUMAR
   S/O LATE KRISHNAN
   AGE 40 YEARS

6. MYLSWAMY
   S/O RAMASWAMY GOUNDER
   AGE 58 YEARS

7. NATARAJU
   S/O MADEGOWDA
   AGE 57 YEARS

8. SIDDEGOWDA
   S/O SIDDEGOWDA
   AGE 55 YEARS

9. VELLANAGIRI
   S/O RAMASWAMY BOVI
   AGE 56 YEARS

10.BHOGANAIK
   S/O POOJANAIK
   AGE 65 YEARS

11.C.N. VELUSWAMY
   S/O LATE C.M. SANGEGOWDA
   AGE 60 YEARS

12.N. CHINNADORE
   S/O K. NANJANDEGOUNDAR
   AGE 67 YEARS

13.P. MANI
   W/O NK NATARAJU
   AGE 55 YEARS

14.RAJATHI
   W/O CHINNASWAMY
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     AGE 48 YEARS
  15.KUMARSWAMI
     S/O MALLANNAGOWDAR
     AGE 68 YEARS

  16.VELUSWAMI
     S/O PALANIYAPPAGOWDAR
     AGE 60 YEARS

  17.MARAMMA
     W/O NAGASHETTY
     AGE 70 YEARS

  18.SHIVAPPA
     S/O BORAYYA
     AGE 68 YEARS

  19.RATHNASWAMI
     S/O K. MADEGOWDAR
     AGE 65 YEARS

     RESPONDENTS NO. 4 TO 19
     ALL ARE RESIDENTIAL AT
     LOKKANAHALLI, HANUR TALUK
     CHAMRAJANAGARA DIST.-571440


                                        .... RESPONDENTS
 (BY SRI.YOGESH D.NAIK., AGA FOR R1 TO R4;
     SRI. T.P. RAJENDRA KUMAR SUNGAY., ADVOCATE FOR R6;
     SRI. SANDESH T.B., ADVOCATE FOR R5;
     SRI. DEVIPRASAD SHETTY., ADVOCATE FOR R7 TO R13)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE ORDER OF THE 1ST
RESPONDENT DATED 110.3.2025 PASSED IN DISPUTE NO.3 OF
2023-24 AS PER ANNEXURE-E AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 29.04.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

CORAM:   HON'BLE MR JUSTICE SURAJ GOVINDARAJ
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                          CAV ORDER


1.   The Petitioner is before this Court seeking for the

     following reliefs;


        1. Issue writ in the nature of certiorari to quash the
           order of the 1st Respondent dated 110.3.2025
           passed in Dispute No.3 of 2023-24 as per
           Annexure-E.

        2. Call for the records in related to the election
           dispute, pending on the file of the 1st Respondent
           in Dispute No.3/2023-24.

        3. Issue any appropriate order or directions as this
           Hon'ble Court deemed fit and proper in the facts
           and circumstances of the case.

2.   The Petitioner claims to be one of the candidates who

     contested in the election of the Managing Committee

     of Respondent No.3-Society held on 13.3.2024,

     wherein the Petitioner was declared as elected from

     the general category for a term of five years,

     necessary procedure and formalities having being

     followed.


3.   Respondents No.15 to 19 who has also contested in

     the said election and having lost the election had

     raised a dispute under section 70 of the Karnataka
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     Co-operative       Societies    Act,    1959    (hereinafter

     referred to as "KCS Act"), challenging the results of

     the   returning     candidates     as     notified   by   the

     Respondent No.2-Returning Officer.

4.   The parties were directed to appear before the

     Respondent No.1-ARCS on 21.01.2024 and file their

     objections. It is alleged that, on 11.03.2025, the

     Respondent No.1 passed an order directing the

     recount of the ballot on 19.03.2025 by issuing

     certain directions to the Chief Executive Officer, in

     pursuance thereof a recount having been held, 3 of

     the persons who had raised the dispute were

     declared elected, it is challenging the same, the

     Petitioner is before this Court seeking for the afore

     said reliefs.

5.   The submission of Sri.M.R.Rajagopal., learned Senior

     counsel is that;

     5.1. A recount of the vote cannot be made at the

           ipse dixie of any of the parties. There have to

           be valid grounds made out for the same. In the
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             election petition that has been filed, there are

             no grounds that have been made out for

             recount except to contend that 13 votes have

             been improperly rejected while counting the

             result of the elections, which would not by itself

             provide grounds for a recount.

      5.2. By referring to the impugned order dated

             11.03.2025,   he    submits   that   there   is   no

             application of mind.     The said order has been

             passed only on the ground that objections to

             the election petition have not been filed and

             that the Respondents did not appear in the

             proceedings nor did they file objections to the

             application for recounting.

      5.3. He relies upon the decision of the Hon'ble Apex

             Court in T.A. Ahammed Kabeer v. A.A.

             Azeez1, more particularly para 26, 27 and 28

             thereof, which are reproduced hereunder for

             easy reference;

1 (2003) 5 SCC 650
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26. The task before an Election Judge is ticklish. It
is often urged and also held that the success of a
winning candidate should not be lightly set aside
and the secrecy of the ballot must be zealously
guarded. On account of a rigid following of these
principles the Election Courts are inclined to lean
in favour of the returned candidates and place the
onus of proof on the person challenging the result
of election, insisting on strict compliance with the
rules of pleadings and excluding such evidence
from consideration as is in divergence with the
pleadings. However, what has so developed as a
rule of practice should not be unduly stretched; for
the purity of the election process needs to be
preserved unpolluted so as to achieve the
predominant goal of democracy that only he
should represent the constituency who has been
chosen by the majority of the electors. This is the
purpose and object of the election law.

27. Though the inspection of ballot papers is to be
allowed sparingly and the Court may refuse the
prayer of the defeated candidate for inspection if,
in the garb of seeking inspection, he was indulging
in a roving enquiry in order to fish out materials to
set aside the election, or the allegations made in
support of such prayer were vague or too
generalized     to    deserve     any    cognizance,
nevertheless, the power to direct inspection of
ballot papers is there and ought to be exercised if,
based on precise allegations of material facts, also
substantiated, a case for permitting inspection is
made out as is necessary to determine the issue
arising for decision in the case and in the interest
of justice. As held by the Constitution Bench in
Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR
1964 SC 1249 : (1964) 6 SCR 238] an Election
Tribunal has undoubtedly the power to direct
discovery and inspection of documents within the
narrow limits of Order 11 of the Code of Civil
Procedure. Inspection of documents under Rule 15
of Order 11 of the Code of Civil Procedure may be
ordered of documents which are referred to in the
pleadings or particulars as disclosed in the
affidavit of documents of the other party, and
under Rule 18(2) of other documents in the
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possession or power of the other party. The
Returning Officer is not a party to an election
petition and an order for production of the ballot
papers cannot be made under Order 11 of the
Code of Civil Procedure. But the Election Tribunal
is not on that account without authority in respect
of the ballot papers. In a proper case where the
interests of justice demand it, the Tribunal may
call upon the Returning Officer to produce the
ballot papers and may permit inspection by the
parties before it of the ballot papers which power
is clearly implicit in Sections 100(1)(d)(iii), 101,
102 and Rule 93 of the Conduct of Elections Rules,
1961. This power to order inspection of the ballot
papers which is apart from Order 11 of the Code
of Civil Procedure may be exercised, subject to the
statutory restrictions about the secrecy of the
ballot paper prescribed by Sections 94 and 128(1).
However, the Constitution Bench has cautioned,
by the mere production of the sealed boxes of
ballot papers before the Election Tribunal pursuant
to its order the ballot papers do not become part
of the record and they are not liable to be
inspected unless the Tribunal is satisfied that such
inspection is in the circumstances of the case
necessary in the interests of justice.

28. It is true that a recount is not to be ordered
merely for the asking or merely because the Court
is inclined to hold a recount. In order to protect
the secrecy of ballots the Court would permit a
recount only upon a clear case in that regard
having been made out. To permit or not to permit
a recount is a question involving jurisdiction of the
Court. Once a recount has been allowed the Court
cannot shut its eyes on the result of recount on
the ground that the result of recount as found is at
variance with the pleadings. Once the Court has
permitted     recount     within   the   well-settled
parameters of exercising jurisdiction in this
regard, it is the result of the recount which has to
be given effect to.
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      5.4. By relying on Ahammed Kabeer's case, he

             submits that the success of a winning candidate

             should not be lightly set aside and recount

             cannot be ordered merely for the asking or

             merely because the Court is inclined to hold a

             recount.

      5.5. He relies upon the decision of the Hon'ble Apex

             Court      in    R.     Kandasamy           v.     T.R.K.

             Sarawathy2, more particularly para 42 and 43

             thereof, which are reproduced hereunder for

             easy reference;

             42. The aforesaid two views of this Court,
             expressed by coordinate Benches, demand
             deference. However, it is noticed that this Court in
             Kanthamani [A. Kanthamani v. Nasreen Ahmed,
             (2017) 4 SCC 654 : (2017) 2 SCC (Civ) 596] had
             not been addressed on the effect of non-existence
             of a jurisdictional fact (the existence whereof
             would clothe the trial court with jurisdiction to try
             a suit and consider granting relief) i.e. what would
             be its effect on the right to relief claimed by the
             plaintiff in a suit for specific performance of
             contract.

             43. In Shrisht Dhawan v. Shaw Bros. [Shrisht
             Dhawan v. Shaw Bros., (1992) 1 SCC 534] , an
             interesting discussion on "jurisdictional fact" is
             found in the concurring opinion of Hon'ble R.M.


2 (2025) 3 SCC 513
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    Sahai, J. (as his Lordship then was). It reads :
    (SCC pp. 551-52, para 19)

    "19. ... What, then, is an error in respect of
    jurisdictional fact? A jurisdictional fact is one on
    existence or non-existence of which depends
    assumption or refusal to assume jurisdiction by a
    court, tribunal or an authority. In Black's Legal
    Dictionary it is explained as a fact which must
    exist before a court can properly assume
    jurisdiction of a particular case. Mistake of fact in
    relation to jurisdiction is an error of jurisdictional
    fact. No statutory authority or tribunal can assume
    jurisdiction in respect of subject-matter which the
    statute does not confer on it and if by deciding
    erroneously the fact on which jurisdiction depends
    the Court or tribunal exercises the jurisdiction
    then the order is vitiated. Error of jurisdictional
    fact renders the order ultra vires and bad. [ Wade,
    Administrative Law.] In Raza Textiles [Raza
    Textiles Ltd. v. CIT, (1973) 1 SCC 633 : (1973) 87
    ITR 539] it was held that a court or tribunal
    cannot confer jurisdiction on itself by deciding a
    jurisdictional fact wrongly."
                               (emphasis supplied)

5.6. By     relying       on        Kandasamy's           case,

    Sri.M.R.Rajagopal.,           learned     Senior   counsel

    submits that, without a ground being made out

    for recounting, no recount could have been

    ordered      by    Respondent           No.1.   The      non-

    existence of a ground for recount would result

    in a non-existence of a jurisdictional fact on

    which basis the ARCS could not have assumed

    jurisdiction to direct a recount.
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      5.7. His submission is that for directing a recount

             there have to be valid grounds which are

             available, which are required to be considered,

             and thereafter a recount ordered.

      5.8. He relies upon the decision of the Hon'ble Apex

             Court in Basudev Dutta vs. The State of

             West Bengal & Ors3 more particularly para

             12.2 and 12.6 thereof, which are reproduced

             hereunder for easy reference;

            12.2. It is settled law that every administrative or
            quasi-judicial order must contain the reasons. Such
            reasons go a long way in not only ensuring that the
            authority has applied his mind to the facts and the
            law, but also provide the grounds for the aggrieved
            party to assail the order in the manner known to law.
            In the absence of any reasons, it also possesses a
            difficulty for the judicial authorities to test the
            correctness of the order or in other words, exercise its
            power of judicial review. In this context, it will be
            useful to refer to the judgment of this Court in Kranti
            Associates (P) Ltd. v. Masood Ahmed Khan', wherein
            after a detailed analysis of various judgments, it was
            held as follows:

            "27. In Rama Varma Bharathan Thampuram v. State
            of Kerala [(1979) 4 SCC 782: AIR 1979 SC 1918] V.R.
            Krishna lyer, J. speaking for a three-Judge Bench held
            that the functioning of the Board was quasi-judicial in
            character. One of the attributes of quasi-judicial
            functioning is the recording of reasons in support of
            decisions taken and the other requirement is following
            the principles of natural justice. The learned Judge

3 Civil Appeal No.13919 of 2024, dated 5.12.2024
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held that natural justice requires reasons to be written
for the conclusions made (see SCC p. 788, para 14:
AIR p. 1922, para 14).

28. In Gurdial Singh Fijji v. State of Punjab [(1979) 2
SCC 368: 1979 SCC (L&S) 197] this Court, dealing
with a service matter, relying on the ratio in Capoor
[(1973) 2 SCC 836: 1974 SCC (L&S) 5: AIR 1974 SC
87], held that "rubber-stamp reason" is not enough
and virtually quoted the observation in Capoor
(supra), SCC p. 854, para 28, to the extent that:

"28.... Reasons are the links between the materials on
which certain conclusions are based and the actual
conclusions." (See AIR p. 377, para 18.)

29. In a Constitution Bench decision of this Court in
H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu
Religious and Charitable Endowments Deptt. [(1979) 4
SCC 642: 1980 SCC (Tax) 16: AIR 1980 SC 1] while
giving the majority judgment Y.V. Chandrachud, C.J.

referred to (SCC p. 658, para 29) Broom's Legal Maxims (1939 Edn., p. 97) where the principle in Latin runs as follows

"Cessante ratione legis cessat ipsa lex."

30. The English version of the said principle given by the Chief Justice is that: (H.H. Shri Swamiji case ((1979) 4 SCC 642: 1980 SCC (Tax) 16: AIR 1980 SC 1], SCC p. 658, para 29)

"29.... reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself." (See AIR p. 11, para 29.)

33. In Star Enterprises v. City and Industrial Development Corpn. of Maharashtra Ltd. [(1990) 3 SCC 280] a three-Judge Bench of this Court held that in the present day set-up judicial review of administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various fields of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. This Court held that disclosure of reasons in matters of such rejection provides an opportunity for an

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objective review both by superior administrative heads and for judicial process and opined that such reasons should be communicated unless there are specific justifications for not doing so (see SCC pp. 284-85, para 10).

....

46. The position in the United States has been indicated by this Court in S.N. Mukherjee ((1990) 4 SCC 594: 1990 SCC (Cri) 669: 1991 SCC (L&S) 242:

(1991) 16 ATC 445: AIR 1990 SC 1984] in SCC p.

602, para 11: AIR para 11 T p.1988 of the judgment. This Court held that the in the United States the courtts have always insisted on the recording of reasos by administrative authorites in exercise of their powers. It was further held that suhc recoding of reasons is requried as the "the courts cannot exercise their duty of review unless they are adviced of the considerations underlying the action under review". In S.N.Mukherjee [(1990)4 SCC 594: 1990 SCC (Cri) 69: 1991 SCC (L & S) 242: (191) 16 ATC 445: AIR 1990 SC 1984] this Court relied on the decision sof the US Court in Securities and Exchange Commission vs. Chenery Corpn. [87 L Ed 626: 318 US 80 (1942)] and Dunlop v. BAchowski [44 L Ed 2d 377: 421 US 560 (1974)] in support of its opinion dicussed above.

justice. Before the services of an employee are terminated, resulting in forfur of his right to be considered for employment, opportunity of explanation afforded to the employee concerned. The appellant was not afforded any opportunity of explanation before the issue of the impugned order, concepensly the order is rendered null and void being inconsistent with the principles of natural justice..."

12.5. This Court in Aureliano Fernandes v. State of Goa, in an unequivocal terms observed as follows:

47. Summarising the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

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(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber- stamp reasons" is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but

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also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37]).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision- making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)], wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process"."

12.6. It is manifestly clear from the above judgments that reasons are heartbeat of every order and every notice must specify the grounds on which the administrative or quasi-judicial authority intends to proceed; if any document is relied upon to form the basis of enquiry, such document must be furnished to the employee; it is only then a meaningful reply can be furnished; and the failure to furnish the documents referred and relied in the notice would vitiate the entire proceedings as being arbitrary and in violation of the principles of natural justice; and before taking any adverse decision, the aggrieved person must be given an opportunity of personal hearing. In the light of the same, we have no hesitation to hold that the order of termination passed against the appellant is arbitrary. illegal and violative of the principles of natural justice and it cannot be sustained.

5.9. By relying on Vasudev Dutta's case, he

submits that every administrative or

constitutional order must contain reasons. It is

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those reasons which are required to be

ascertained and verified to ascertain if the

order passed is correct or not. If no reasons are

provided, the authority appreciating the order

in an appeal or otherwise would not be able to

do so, and it is in that background that he

submits that where reasons are not provided,

the unreasoned order will have to be set aside.

5.10. In the present case, the ARCS has not given

any reason for holding a recount. On the above

basis, he submits that the above petition is

required to be allowed.

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

appearing for Respondents No.15 to 19 would submit

that;

6.1. Firstly, the Petitioner has an alternative efficacy

remedy, in terms of Section 105 of the KCS

Act, inasmuch as the order which has been

passed is akin to an award passed by an

arbitrator under Clause (c) of Sub-section (1) of

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Section 71 and as such an appeal is provided to

a tribunal and as such the present petition is

not maintainable.

6.2. Secondly, he submits that the Petitioner is not

an aggrieved party inasmuch as the Petitioner

is not affected by the recount the election of

the Petitioner still stands. It is three of the

Respondents namely Sri.Kumaraswamy,

Smt.Maramma and Sri. Veluswamy, who have

been now declared to be elected on account of

the recount of the votes.

6.3. The aggrieved parties being three others, they

have not approached this Court. Hence the

question of granting any relief to the Petitioner

on academic grounds, and appreciation of the

contentions taken by the Petitioner would not

arise. On this ground, he submits that the

above petition is required to be dismissed.

7. Heard Sri.M. R.Rajagopal, learned senior counsel for

the Petitioner, Sri.Jaykumar S.Patil, learned senior

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counsel for Respondents No.15 to 19 and Sri.Yogesh

D. Naik, learned AGA for Respondents No.1 and 2.

Perused papers.

8. The points that would arise for determination are;

1. Whether in an election petition and or proceedings arising therefrom, a person whose election is not disturbed can be said to be an aggrieved party, entitling such person to challenge any order passed in the proceedings?

2. Whether even if there is any infraction of the applicable procedure, can a person other than an agreived party but who is a contestant in the election challenge such an order?

3. Whether the present petition is not maintainable on account of an alternative efficacious remedy being available under Section 105 of the KCS Act?

4. What order?

9. I answer the above points as under:

10. Answer to point No.1: Whether in an election petition and or proceedings arising therefrom, a person whose election is not disturbed can be

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said to be an aggrieved party, entitling such person to challenge any order passed in the proceedings?

10.1.It is not in dispute that the Petitioner's election

is not disturbed. The Petitioner continues to be

a successful candidate and has been declared

elected as a director. On account of the recount

three of the successful candidates have now

failed in the election however, those persons

are not before this Court.

10.2.The submission of Sri.M.R.Rajagopal., learned

senior counsel is that if there is an infraction of

any particular procedure in an election any of

the candidate in the election could challenge

the same irrespective of whether they are

affected by it or not and as such he contends

that the Petitioner has a locus to file and

maintain the above petition.

10.3.I am unable to agree with the said submission

of Sri.M.R.Rajagopal., learned senior counsel,

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merely because one of the candidates were to

bring to notice of this Court certain infraction

and thereby bring about a challenge to the

election of any other candidate in as much as if

a challenge were required to be made, the

same could be made only by way of election

petition.

10.4.In the present case, though it is contended by

Sri. M.R.Rajagopal., learned senior counsel that

no grounds have been made out in the election

dispute. Respondent No.1, being of the opinion

that 13 votes had not been counted, had

directed a recount, which caused three of the

Respondents to become successful. The fact

that there is a change in the result on account

of a recount where many of the votes which

were held to be invalid have now been held

valid would indicate that there was sufficient

ground raised by the respondents.

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10.5. However, the three of the candidates who have

now lost the elections have neither challenged

that order, have neither appeared before the

ARCS, nor challenged the said order, nor are

they before this Court.

10.6. Thus, the aggrieved party would be those three

candidates who have lost the election now, who

do not apparently have any grievance as

regards their losing the elections. The Petitioner

is one other candidate who has not suffered on

account of the voting individually, however

contends that there is an infraction of the

procedure.

10.7. Whether there is an infraction of the procedure

or not, I'am of the sonsidered opinion that

unless, the person coming before this Court is

able to establish that there is any harm or

injury, caused to such person or right of that

person being affected a petition cannot be

maintained. If the person approaching this

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courrt is not affected, the only manner in which

such a petition will be maintainable is as a

Public Interest Litigation, which obviously the

present petition is not, there being a categorical

statement made in para 7 of the petition that it

is not a Public Interest Litigation.

10.8.Thus, the Petitioner is not before this Court

espousing the cause of any other person which

is in public interest, but it is categorically stated

to be espousing his own interest on the ground

that there is an infraction of law from and out

of which he has not suffered any harm or

injury.

10.9.Thus, I answer point No.1 by holding that

an election petition and or proceedings

arising therefrom, a person whose election

is not disturbed can not be said to be an

aggrieved party, entitling such person to

challenge any order passed in the said

proceedings by way of a writ petition, the

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Writ Petition in such corcumstances

cannot be maintained.

11. Answer to point No.2: Whether even if there is any infraction of the applicable procedure, can a person other than an agreived party but who is a contestant in the election challenge such an order?

11.1. This aspect is dealt with to some extent in

answer to point No.1. The contestant at an

election can have a right or grievance insofar as

his election is concerned and cannot have a

grievance as regards any other person's

election so long as the same does not have an

impact on the election of such candidate.

11.2. In the present case, the Petitioner is a

successful candidate, whose election has been

unaffected by the recount of the votes. Thus,

merely being a candidate, in my considered

opinion would not entitle the Petitioner to

challenge the results of the election.

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11.3. The decision in Ahammed Kabeer s case

speaks of the success of a winning candidate

not being lightly set aside. In the present case,

the result of the Petitioner has not been set

aside. Insofar as ordering a recount is

concerned, it is only the persons who have lost

on account of the said recount who could have

a grievance and not the Petitioner. Whose

election is not affected adversely.

11.4. Thus I answer point No.2 by holding that

even if there is any infraction of the

applicable procedure, a person other than

an aggrieved party but who is a contestant

in the election can not challenge such

violation, the same being academic, no

relief can be granted to such a contestant.

12. Answer to Point No.3: Whether the present petition is not maintainable on account of an alternative efficacious remedy being available under Section 105 of the KCS Act?

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12.1. Section 105 of the KCS Act is reproduced

hereunder for easy reference;

105. Appeals to the Tribunal. - Any person aggrieved by,-

(a)any decision of the Registrar made under clause (a) of sub-section (1) of section 71; or

(b)any decision of the person invested by the State Government with powers in that behalf under clause (b) of sub-section (1) of section 71; or

(c)any award of an Arbitrator under clause (c) of sub-section (1) of section 71; or

(d)any determination of a Liquidator under clauses

(f) of subsection (2) of section 74; or

(e)any order made under section 103 with a view to preventing any delay or obstruction in [the execution of any order, decision or award that may be made under sections 69 and 71] [Substituted by Act 25 of 1998 w.e.f. 15.08.1998.]; or

(f)[ any order passed under section 69;] [Inserted by Act 19 of 1976 w.e.f. 20.01.1976.]may, within sixty days from the date of the decision, award or order, as the case may be, appeal to the Tribunal.

12.2. A perusal of Clause (C) of sub-section (1) of

Section 105 indicates that any person

aggrieved by any award of an arbitrator under

Clause (C) of sub-section (1) of Section 71 may

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within 60 days from date of decision, award or

order appeal to the Tribunal.

12.3. The present order passed by the ARCS, though

an interim order directing the recounting, which

later on resulting in three of the Respondents

being declared successful, which is a final