Govindappa vs Somasekhar Ishwarappa and Others

Venkataramaiah, J.-This appeal is filled against the order of the learned single Judge it WP. 3815 of 1977 dismissing the said petition. The appellant was the petitioner in that petition. Briefly stated the facts of the case are these: At an election to the managing committee of a Co-operative Society, the appellant, respondent-2 and some others were candidates. At the time of the scrutiny of the nomination papers, respondent-2 raised objection to the nomination of the appellant on the ground that he (the appellant) was suffering from a disqualification referred to in Sec. 29C of the Karnataka Co-operative Societies Act, 1959 (hereinafter reffered to the Act). The said objection was over-ruled and election was held. The appellant was declared as a successful candidate at the enaction. There after respondents 1 and 2 raised an election dispute challenging his election under Sec.70 of the Act on the ground that he was disqualified to be chosen, as a member under Sec. 29C of the Act and filed the election petition before the Joint Registrar of Co-operative Societies-Respondent-8, on whom the State Govt had conferred the powers exercisable by the Registrar under Sec.70 of the Act in relation to the class of co-operative societies to which the Co-operative Society belonged, by an order made under Sec.2A of the Act. He in his turn referred the dispute to the Deputy Registrar of Co-op Societies, Respt-7, who had been empowered to hear and decide such disputes as an arbitrator by an order passed by the Registrar under Sec.71(1)(c) of the, Act, Before Respt-7, the appellant raised an objection to his jurisdiction to hear and decide the, dispute on the ground that sub-sec.(7) of Sec.29C required that any question as to whether a member of a committee was or had become subject to any of the disqualifications mentioned in Sec.29C of the Act, should be decided the Registrar after giving the person concerned a reasonable, opportunity of being heard and that Respt-7 who was neither the Registrar nor an officer to whom the power of the Registrar under Sec.29C(7) had been delegated by the State Govt under Sec.2A of the Act, could not hear and decide whether the appellant was suffering from any of the disqualifications mentioned in Sec.29C of the Act prior to the election. Respt-7 overruled the said objection by his order d/29-1-77. A revision petition filed against that order by the appellant and another before the Karnataka Appellate Tribunal, Bangalore, was dismissed on 23-4-77. Against the order of the Tribunal, this appelant filed WP.3815 of 1977, out of which this appeal arises, questioning the jurisdiction of Respt-7 to hear and decide the election dispute on the very same ground. The learned single Judge dismissed it. Hence this appeal.

Sub-sec.(1) of Sec.29C of the Act provides that no person shall be eligible for being elected or appointed or continued as a member of the committee if he is suffering from any of the disqualifications mentioned therein. Sub-sec.(7) of Section 29C reads:

"Any question as to whether a member of the Committee was or has become subject to any of the disqualifications mentioned in this section shall be decided by the Registrar after giving the person concerned a reasonable opportunity of being heard." Sub-sec.(1) of Sec.70 of the Act provides that notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-op. society arises amongst the members such a dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute. Sub-sec.(2) of Sec.70 provides that for the purposes of sub-sec.(1) any dispute arising in connection with the election of a member of a co-op. society, shall be deemed to be a, dispute touching the constitution management or the business of a co-op. Society. A dispute raised under Sec.70 has to be disposed of by the Registrar or by any other person authorised to do so under Sec.71 in accordance with the relevant provisions of the Act. It is well-settled that if the law requires that a dispute should be, decided in a particular manner, ordinarily it cannot be decided in any other way. In the instant case an election dispute which is required to be decided under Sec.70 of the Act cannot at all be decided in any other manner because of the non-obstante clause appearing in sub-sec.(1) of Sec.70 of the Act. The only question to be decided in the present election dispute is whether the acceptance of the nomination paper of the appellant was valid or not and the answer to that question depends upon the decision on the question whether he was suffering from any disqualification referred to in Sec.29C of the Act, prior to the election or not. It is, therefore, clear that the latter question has to be decided by the person who is authorised to hear and decide the election petition under Section 71 of the Act.

It is however argued by Shri K.S.Savanur, learned Counsel for the appellant that sub-sec.(7) of Sec.29C of the Act which is a special provision has to prevail over Sec.71 and that both of them can be given effect to by directing the Registrar who is empowered to decide both the dispute, under Sec.70 of the Act and any question arising under Sec.29C of the Act to hear and decide the election petition. It may be that the Registrar himself may decide the election dispute as suggested by the learned Counsel far the appellant. But the real question to be decided in the case is whether Respt-7 cannot decide all questions arising in the election dispute including the existence or otherwise of any disqualification referred to in Sec.29C of the Act notwithstanding sub-sec.(7) of S.29C of the Act.

Sub-section (1) of Sec. 29C of the Act lays down that no person shall be eligible for being elected or appointed or continued as a member of the committee if he is suffering from any of the disqualifications mentioned therein. It follows that if a person is suffering from any disqualification before the election, he cannot be a candidate and his nomination paper has to be rejected. But if notwithstanding such a disqualification being there the election is held and he is elected, his election can be challenged in an election petition under Sec.70 of the Act filed within the period of limitation prescribed under Sec.72A of the Act. If a member becomes subject to any disqualification mentioned in Sec.29C(1) of the Act after the election is held, then the question whether he has become subject to any such disqualification or not, has to be decided under sub-section (7) of Sec.29C of the Act by the Registrar or any other authority on whom power is conferred. If this distinction between a pre-election disqualification and post-election disqualification is kept in View it is possible to give effect both to S.70(1) and S.29C(7) of the Act without doing violence to the language and intendment of the statute. Such a distinction does exist in election matters is borne out from the decision of the Supreme Court in Election Commission, India v. Saka Venkata Rao, AIR. 1953 SC. 210. In that case the facts were these: The respondent in that case had been convicted and sentenced to seven years'' rigorous imprisonment in 1942 and he was released prematurely on the Independence Day i.e., 15-8-1947. In June 1952 there was to be a by-election to a reserved seat in the Kakinada, Constituency of the Madras Legislative Assembly. The respondent therein desiring to offer himself as a candidate but finding himself disqualified under Sec. 7(b) of the Representation of the People Act, 1951, as five years had not elapsed from the date of his release, applied to the the Election Commission on 2-4-1952 for exemption so as to enable him to contest the election. No reply was received till 5-5-1952, the last day for filing nominations. He however filed his nomination paper on that day and it was accepted without any objection. At the election he was successful and he took his sept in the Assembly in June 1952. Meanwhile the Commission rejected the respondent''s application for exemption by its letter d/13-5-52. On 3-7-52 the Speaker of the Assembly read-out to the House a communication received from the Commission bringing to his notice ''for such action as he may think fit to take'' the fact that the respondent''s application for exemption had been rejected. The question of disqualification of a member having arisen, the Speaker referred the said question to the Governor who forwarded it to the, Election Commission as required by Art. 192 of the Constitution. The Election Commission despite objection on the part of the member concerned, fixed the date of hearing into the case. At that stage, the respondent therein filed a writ petition before the High Court of Madras questioning the competence of the Election Commission to hear the case. That petition was allowed. In the appeal filed by the Election Commission, the Supreme Court upheld the the plea of the respondent therein in the following terms:

"Article 191, which lays down the same set of disqualification for election as well as for continuing as a member, and Art. 191 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications; but it does not necessarily follow that Arts. 190(3) and 192(1) must also be taken to cover both. Their meaning must depend on the language used which, we think, is, reasonably plain. In our opinion these two articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words "becomes subject" in Art. 190(3) and "has become subject" in Art. 192(1) indicate a charge in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filing therefore becomes vacant on his becoming disqualified, further reinforce the view that the articles contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he, is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word "is" were substituted for "becomes" or "has become", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used. It was said that on the view that Articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground far challenging the election by an election petition under Art.329 of the Constn read with Sec. 100 of the Representation of the People Act, 1951. If this is an anomaly it arises out off a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent''s construction of the constitutional provisions. On the other hand, the Attorney-general''s contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under Art. 192 and by the Election Tribunal inquiring into an election petition under Sec. 100 of the Parliamentary statute referred to above.

For the reasons indicated we agree, with the learned Judge below in holding that Arts. 190(3) and, 190(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent''s disqualification which arose long before his election."

It is seen from the above passage that in order to avoid conflict of decisions by two different authorities, it is necessary to recognise the distinction between disqualification suffered prior to the election and disqualification incurred subsequent to the election.

Moreover the language of sub-section (7) of Sec.29C also suggests that it cannot refer to the disqualification off a candidate before, the election. It provides that it shall apply only to a member of a committee who was or has become subject to any disqualification. A person becomes a member only after he is duly elected. Hence the said provision can apply only, to a post election disqualification.

In the context of the provisions of the Act, we have also to recognise the distinction between proceedings under Sec.70 and proceedings under Sec.29C of the Act. A decision given under Sec.71 on a dispute raised under Sec.70 is subject to an appeal to the Tribunal under Sec.105 but a decision under Sec.29C is subject to an appeal to the State Government or any other officer, as the case may be, as provided in Sec.106 of the Act. It is thus seen that both the original authority and the appellate authority in regard to the two matters referred to above are distinct and separate.

Having regard to the non-obstante clause in Sec.70(1) of the Act and to the principle of harmonious construction of a statute, we feel that it has to be held that sub-sec.(7) of Sec. 29C of the Act applies only to cases where a member has incurred a disqualification subsequent to the election.

In the instant case admittedly the alleged disqualification in question is one incurred prior to the election and it can be decided only in a proceeding commenced under Sec.70 of the Act. Respondent-7 who is appointed as an Arbitrator for the purpose of Sec.71(1)(c) of the Act has jurisdiction to hear and decide the, election petition filed against the appellant.

Hence, there is no ground to interfere with the order of the learned single Judge. The appeal is, therefore, dismissed without notice to the respondents.