JAYAMUTHU S/O CHIKKENEGOWDA Vs STATE ELECTION COMMISSION FOR CO-OPERATION KARNATAKA STATE CO-OPERATIVE

These writ appeals assail the order of the

Hon''ble Single Judge dated September 03, 2015

passed in W.P.No.22110/2014.

Writ Appeal No.3482/2015 is filed by the

writ petitioner - Sri Jayamuthu, being aggrieved by

the dismissal of his writ petition on the ground that it

is not maintainable on account of availability of an

alternative remedy. Writ Appeal No.4515/2015 is filed by Harohalli Milk Producers Co-operative Society

Limited, assailing the very same order of the Hon''ble

Single Judge, being aggrieved by the consequent

directions issued subsequent to the dismissal of the

aforesaid writ petition. W.A.No.4556/2015 is filed by

appellants who are not parties in the writ petition,

being Presidents of certain Milk Producers Co-

operative Societies. The said societies are members

of the Bangalore City, Bangalore Rural and

Ramanagar District Milk Producers Co-operative Union

Limited. Writ Appeal No.4514/2015 is filed by Sri

Ramachandra, being aggrieved by the order dated

September 26, 2015 passed in W.P. No.41478/2015.

By the said order the Hon''ble Single Judge has

dismissed the writ petition on the premise that the

election was conducted in terms of Annexure-D

therein, pursuant to the order dated September 03,

2015 passed in W.P.No.22110/2014.

Although these appeals arise out of the

order passed in Writ Petition No. 22110/2014 and

W.P.No.41478/2015, the facts shall be narrated

having regard to W.A.No.3482/2015 filed by the

petitioner in W.P.No.22110/2014, for a better

understanding of the controversy.

Writ Petition No.22110/2014 was filed by

the petitioner assailing rejection of his nomination as

a candidate by order dated May 20, 2014 (Annexure-

H) passed by the Assistant Commissioner and

Electoral Officer, Bangalore Urban, Bangalore Rural,

Ramanagar District Co-operative Milk Producers

Societies Union Limited, Bangalore (second

respondent herein).

It is the case of the appellant/petitioner in

W.P.No.22110/2014 that he had been delegated by

respondent No.5- Harohalli Milk Producers Co-

operative Society Limited, to vote, contest and

participate in the election to respondent No.4- Union.

Respondent No.3 had sent the details of the

application. The final voters'' list was announced by

respondent No.1. The name of the respondent No.5

was also mentioned herein. At that stage, respondent

No.6 filed a complaint before the second respondent

stating that respondent No.5-Society was not eligible

to contest in the election as the said society was a

newly constituted society and it could not be classified

in the ''B'' category. Further, the audit report of the

said society for the year 2012-13 had not yet been

considered. On that complaint, the Returning Officer

sought clarification from the first respondent. Notice

was issued to the petitioner as well as respondent

No.5. Written arguments were submitted. Thereafter,

respondent No.1 passed an order holding that the

societies which had conducted audit for the year

2013-14 could furnish details of the same. Hence, the

dispute with regard to the audit was sorted. But, on

the date of scrutiny of the nominations, respondent

No.6 persisted in his complaint, objections by

respondent No.5 were heard. Respondent No.5 was

also heard through its advocate as well as the

petitioner. Thereafter, Annexure-H dated May 20,

2015 was passed to the effect that the petitioner had

failed to comply with the provisions of the Co-

operative Societies Act, 1959 and the bye laws of the

4th respondent - Bangalore City Milk Union and

therefore his nomination was rejected. Being

aggrieved by the rejection of his nomination he

preferred the writ petition assailing the order of

rejection of his nomination.

Hon''ble Single Judge entertained the writ

petition and passed an interim order on May 22, 2014

directing the Returning Officer to include the date of

the petitioner as a contesting candidate for

Channapatna Constituency in the election of

respondent No.4 - Milk Union to be held on May 24,

2014, so that he could contest in the election.

However, the result of the election was subject to the

decision of the writ petition. Pursuant to the aforesaid

interim order, poll was held and the petitioner was

successful in the said election.

According to the petitioner, the writ

petition was pending before this court. In fact, rule

nisi was issued, question of law to be considered in

the writ petition was also formulated. But by the

impugned order dated September 03, 2015 passed by

the Hon''ble Single Judge, the writ petition has been

dismissed on the ground that it is not maintainable on

account of availability of an alternative remedy. By

virtue of the dismissal of the writ petition, the interim

order dated May 22, 2015 has also dissolved.

Therefore, the success of the petitioner in the election

pursuant to the interim order has come to naught as a

direction was issued to the effect that all proceedings

subsequent to May 22, 2014 was quashed. The

official respondents were directed to continue the

election process from that date onwards. Being

aggrieved by the dismissal of the writ petition and the

consequent direction issued by the Hon''ble Single

Judge, these writ appeals have been preferred.

At this stage, it may be noted, in these writ

appeals, by order dated September 26, 2015 it was

observed that election was scheduled to be held on

September 27, 2015 pursuant to the directions of the

Hon''ble Single Judge. Therefore, the holding of poll

was permitted, but it was directed that the result

ought not to be announced. The election process was

completed pursuant to the direction issued by the

Hon''ble Single Judge on dismissing the writ petition

which had assailed the rejection of the nomination of

the petitioner and on the basis of order dated

September 26, 2015 passed in these appeals.

Thereafter, writ appeals were listed on several dates

and ultimately they were heard finally on March 17,

2017. In the interregnum, respondent No.6 Sri

S.Lingesh Kumar, had approached the Hon''ble

Supreme Court assailing order dated September 26,

2015 referred to above. The Special Leave Petition

was disposed of with a request to this court to dispose

of W.A.No.3482/2015 expeditiously and preferably

within a period of eight weeks from February 17,

2014.

We have heard learned senior counsel and

other counsel for the appellants as well as learned

counsel and other counsel for respondents and

perused the material on record.

Learned senior counsel Sri. D.L.N. Rao,

appearing for the petitioner-appellant in

W.A.No.3482/2015 contended that the Hon''ble Single

Judge was not right in dismissing the writ petition on

the ground of maintainability without adjudicating the

same on merits. He contended that even before the

date of the poll, the appellant herein had assailed

rejection of his nomination by way of a writ petition.

The writ petition was entertained. Drawing our

attention to the order sheet in W.P.No.22110/2014,

learned senior counsel contended that a positive

interim order was granted and pursuant to the interim

order dated May 22, 2014, the appellant participated

in the election and he was the successful candidate.

The writ petition was pending adjudication. In fact on

June 16, 2014 this court permitted the appellant to

assume office and he has been the President of the 3rd

respondent - Milk Union and thereafter, on July 08,

2014, question for consideration was formulated in

the following manner;

"Whether the election officer was justified in rejecting the petitioner''s nomination on the premise that the 5th respondent-society had not subjected its account to statutory audit as on the date of filing of nominations"

In fact on June 04, 2015 rule nisi was issued in

the writ petition. But by the impugned order, the writ

petition has been dismissed on the ground of

maintainability on account of availability of an

alternative remedy so as to challenge the rejection of

nomination by way of an election petition. According

to learned senior counsel, the dismissal of the writ

petition on the ground of maintainability after the

same was pending for quite sometime and in fact

question of law being raised and rule nisi being

issued, was improper. Learned senior counsel

contended that the Hon''ble Single Judge did not

adjudicate the writ petition on merits, despite the

framing of a question of law for consideration. That

issuance of rule nisi could not have been discharged

on the premise that the writ petition was not

maintainable on account of the availability of an

alternative remedy. That, when a nomination is

improperly rejected, the remedy by way of writ

petition before the actual poll is also available. In

support of his submissions, learned senior counsel has

relied upon the following decisions namely,

i) State of H.P and Others vs. Gujarat Ambuja Cement Ltd. and Another [(2005) 6 SCC 499].

ii) L.Hirday Narain vs. Income Tax Officer, Bareilly [1970(2) SCC 355].

iii) Kanak (Smt.) and another vs. U.P. Avas Evam Vikas Parishad and Others [(2003) 7 SCC 693]

iv) Nandhi Minerals vs. State of Karnataka [SCC Online KAR 3174]

v) Pundalik vs. State of Maharashtra and Others [(2005) 7 SCC 181]

vi) (2008) 12 SCC 675

vii) (2014) 16 SCC 623

viii) State of Uttar Pradesh and Another vs. Uttar Pradesh Rajya Khanu Vikas Nigama Sangharsh Samiti and Others [(2008) 12 SCC 675]

Learned senior counsel for the appellant

contended that the rejection of his nomination as a

candidate being illegal, the appellant need not have

waited for the election process to have completed so

as to assail the same by filing an election petition. In

substance, the contention of the learned senior

counsel was that the writ petition filed under Article

226 of the Constitution was maintainable and

therefore the matter would have to be heard on

merits.

Learned senior counsel, Sri. D.N.N. Reddy,

appearing for the appellants in W.A.No.4556/2015

submitted that these appellants were not parties in

the writ petition, they are Presidents of various Milk

Co-operative Societies and they are aggrieved by the

operative portion of the order of the Hon''ble Single

Judge. While dismissing the writ petition, Hon''ble

Single Judge directed that all further proceedings and

all actions subsequent to May 22, 2014 i.e. the date

on which interim order was granted, are quashed.

Hon''ble Single Judge further directed that the election

process be continued from May 22, 2014 onwards.

Learned senior counsel contended that the bye-laws

have been amended on August 22, 2015 to the effect

that only Presidents of the co-operative societies are

now eligible to vote, but in the instant case on a

perusal of the voters list, it would become clear that

66 out of 134 persons are not Presidents, but they are

directors and were ineligible to cast their vote in the

poll held on September 27, 2015. By virtue of the

amendment made to the bye-laws, the directors were

not eligible to participate in the elections. That in

respect of 22 other societies, the voters did not

continue as directors, but they were permitted to vote

in the election held pursuant to the dismissal of the

writ petition. Thus, in all 88 persons, out of 134 were

ineligible to participate in the election process and

therefore the poll held subsequent to the directions of

the Hon''ble Single Judge and the order of Division

Bench in these appeals is vitiated. Although voting

has taken place, the result has not yet been declared.

According to learned senior counsel, Hon''ble Single

Judge therefore, was not right in directing the

completion of the electoral process without taking

note of the subsequent events particularly, the

amendment made to the bye-laws. He therefore

submitted that a direction be issued to redo the entire

exercise.

Learned senior counsel, Shri Shyam

Prasad, submitted that Section 70 of the Co-operative

Societies Act, 1959, under which an election dispute

could also be adjudicated upon is not an adequate

remedy, as there is a vital difference between an

improper rejection of nomination and an illegal

acceptance of nomination of a candidate. That in the

case of illegality of the latter, election petition is an

appropriate remedy but when there is an improper

rejection of the nomination, then a writ petition is

maintainable. Otherwise, the person aggrieved by the

improper rejection of his nomination would be unable

to participate in the poll and thereby prejudiced. In

support of his submissions, he placed reliance on ILR

1991 KAR 4421, ( L.Ramakrishnappa vs.

Presiding Officer ) and ILR 1992 KAR 979

( Nanjundaswamy vs. Assistant Registrar of Co -

operative Societies).

Per contra, learned senior counsel, Shri.

Udaya Holla, appearing for the sixth respondent

supported the order of the Hon''ble Single Judge and

contended that the writ petition assailing an improper

rejection of a nomination is not maintainable. He was

quick to point out that in case of Nanjundaswamy, on

which, reliance has been placed by the appellants it is

categorically observed at Paragraph 10 that a writ

petition is not maintainable to assail rejection of a

nomination of a candidate. He further rebutted the

submissions made on behalf of the appellants in Writ

Appeal No.4556/2015 by contending that the amendment

made to the bye-laws can have no effect on the

electoral process in the instant case even if the

persons who were eligible to vote in such election

became ineligible subsequently, by an amendment

made to the bye-laws, but subsequent to the

commencement of the election process. That would

not have a bearing in adjudicating upon the

petitioner''s grievance with regard to the improper

rejection of his nomination. He submitted that the

directions issued by the Hon''ble Single Judge on

dismissing the writ petitions on the ground of

maintainability are in accordance with law and would

not call for any interference in these appeals. Learned

senior counsel placed reliance on the following

decisions namely, K.T.Muthuswamy vs. K.Natarajan

[1988 (1) SCC 572] and N.P.Ponnuswami vs.

Returning Officer, Namakkal [AIR 1952 SC 64]

and other decisions to contend that the writ petition

was not maintainable.

He further submitted that the question

framed by this court in the writ petition is not a

question of law, but a question of fact which cannot be

adjudicated upon in a writ petition and therefore the

Hon''ble Single Judge was right in dismissing the writ

petition without going to its merits. It was submitted

that the audit for the year 2012-13 was relevant and

not for the year 2013-14. That the society could not

be categorized as ''B'' society before completion of two

years. Therefore, the rejection of petitioner''s

nomination was valid. In the circumstances, the

learned counsel for the respondents submitted that all

the writ appeals be dismissed.

Having heard the learned counsel for the

parties and on perusal of the material on record, we

find that the writ petition was filed by a candidate,

who was aggrieved by the rejection of his nomination;

however he participated in the ensuing poll on the

strength of the interim order dated May 22, 2014

passed by this court in the writ petition. It is also

noted that the writ petition was subsequently ordered

to be considered on a question formulated and in fact

rule nisi was also issued. Subsequently by order

dated September 03, 2015 the writ petition has been

dismissed on the ground of maintainability by

directing that the election process be completed from

the stage it was on May 22, 2014.

The point to be considered in these appeals

is, whether, the Hon''ble Single Judge was right in

dismissing the writ petition on the ground of

maintainability and whether the consequential

directions issued to complete the election process

from the stage it was on May 22, 2014 was justified,

when in the interregnum there were certain

amendments made to the bye-laws?

At the outset, it is noted that under Article

329(b) of the Constitution there is a bar to

interference by a court in matters pertaining to an

election except as stated therein. The said clause

states that no election to either House of Parliament

or to the House or either House of the Legislature of a

State shall be called in question except by an election

petition presented to such authority and in such

manner as may be provided for by or under any law

made by the appropriate Legislature. Article 329(b)

excludes the jurisdiction of courts to entertain the

matter relating to election disputes prior to the

conclusion of the election process. Thus, an election

can be challenged in the manner laid down in law

made by the appropriate legislature. The term

''election'' has been interpreted by the Hon''ble

Supreme Court in N.P. Ponnuswami vs. Returning

Officer, Namakkal [AIR 1952 SC 64], to connote

the entire procedure to be gone through to return a

candidate. It has been held therein that rejection or

acceptance of nomination is included in the term

''election''.

The question is, whether the express bar

contained in Article 329(b) with regard to any election

to be held to either House of Parliament or Legislature

of a State applies to all other elections including the

election in controversy in the instant case and, if so,

whether the only remedy for an aggrieved party is an

election petition. While considering the same, the

question of alternative remedy or relief being available

to a party, would act as a bar to avail the

extraordinary remedy by way of a writ petition under

Article 226 of the Constitution would also arise.

The salutary principle that, when remedies

in the nature of statutory remedies are available to an

aggrieved party, would not enable an extraordinary

remedy to be availed of in substitution of the ordinary

remedy, is one, which often arises, while entertaining

writ petitions filed under Article 226 of the

Constitution, as a remedy by way of a writ petition is

an extraordinary remedy. Under Article 226 of the

Constitution five types of writs could be issued which

are also essentially intended to apply in exceptional

cases, in which ordinary legal remedies are not

adequate; although the language of Article 226

expressly does not say so. However, the powers under

Article 226 of the Constitution confers extensive

discretion in the High Court and when discretion is

exercised it is on well established principles such as

delay, suppression of facts, disputed question of fact,

futile writs etc. The ground of availability of an

alternative remedy is also one such reason not to

exercise discretion under Article 226 of the

Constitution and refusal to grant any relief if the

aggrieved party can have recourse to an alternative or

adequate remedy elsewhere.

As already noted, the remedies under

Article 226 of the Constitution cannot be permitted to

be utilized as a substitute for ordinary remedies when

an efficacious, ordinary remedy exists, unless there is

any exceptional reason for dealing with the matter

under the writ jurisdiction. At the same time, we may

hasten to add that the doctrine of alternative remedy

is available only where that remedy fully covers the

challenge to the election as in the instant case. It is

noted, the doctrine of alternative remedy is only a rule

of discretion and not a rule of law, but the High Court

can always issue a writ, despite the availability of an

alternative remedy, when there is a patent want of

jurisdiction or, when there has been denial of natural

justice before the court of summary jurisdiction or,

whether when the vires of an Act is impugned or,

when there is an allegation that the fundamental right

has been infringed. Further, if the alternative remedy

is not adequate, then the High Court would not refuse

to entertain a writ petition. In the aforesaid

contingencies, even if the alternative remedy is

available, a writ petition would be entertained.

The contention of learned senior counsel

for the appellant in W.A.No.3582/2015 is two fold:

firstly, that the appellant approached this court by

way of a writ petition even prior to the poll, being

aggrieved by the improper rejection of his nomination

as a candidate in the election and that this court

rightly issued an interim order, as the writ petition

was maintainable since it was against an improper

rejection of a nomination paper and not a case where

there has been an improper acceptance of nomination

paper, in which event possibly the election petition

was a more appropriate remedy. Secondly, the

contention is that appellant''s writ petition was

entertained, interim order was granted, question of

law was framed, rule nisi was issued and hence the

writ petition could not have been dismissed summarily

on the ground of maintainability without considering

the merits of the matter.

Taking up the first contention, at the

outset, it is held that there can be no distinction

between a case of improper rejection of a nomination

of a candidate in an election and improper acceptance

of a nomination in the context of filing of a writ

petition in order to assail the same though there is a

vital difference between the two, in that, in the former

case, the aggrieved party cannot participate in the

election process and in the latter case the aggrieved

party would be entitled to participate in the election.

However, on getting the election of the successful

party-whose nomination was illegally accepted-being

set aside in a properly constituted election petition,

the aggrieved party would get the relief. But the point

is, whether, because of the aforesaid difference, it

can be held that in the case of an improper rejection

of nomination, a writ petition could be filed by the

aggrieved party and not at the instance of an

aggrieved party, when it is a case of improper or

illegal acceptance of a nomination. We do not think

that such distinction could be made for the purpose of

Article 226 of the Constitution. In either case,

whether it is a case of improper acceptance of a

nomination or improper rejection of a nomination, the

same would require proof of facts which cannot be

adjudicated upon in a writ petition, merely on the

basis of affidavit and counter affidavits. As the

reasons for improper rejection or improper acceptance

of nomination could be for myriad reasons and merely

because in a particular case proof of disputed question of facts would not arise, it cannot be held that the

writ petition could be maintained. Therefore, when

once the election process has commenced, courts

ought not to interfere in the election process and

particularly the High Court under Article 226 of the

Constitution should not interfere with an election

process. While saying so, we rely upon an early

decision and time tested precedent of the Hon''ble

Supreme Court in the case of N.P.Ponnuswami, which

case arose precisely on the question of improper

rejection of nomination of a candidate therein.

Though in that case Article 329(b) of the Constitution

applied, nevertheless the principles propounded

therein would apply with all force to all elections.

N.P.Ponnuswami''s case in fact, has been

followed by the Hon''ble Supreme Court in Nanhoo

Mal vs. Hira Mal [AIR 1976 SC 2140], which was a

case of election to a Municipal Board, wherein it has

been held that the election to the office of the

president, could be challenged only according to the

procedure prescribed by the Municipalities Act i.e. by

means of an election petition presented in accordance

with the provisions of that Act and in no other way.

Thus, a post-election remedy by way of an election

petition is in our view, an adequate remedy to give

relief to an aggrieved party, as improper rejection or

acceptance of the nomination of a candidate is always

a ground to assail an election.

It is also well recognized that when a right

or liability is created by a statute, which gives a

special remedy for enforcing it, the remedy provided

by statute only must be availed of. In this regard,

reliance could be placed on Wolverhampton New

Water Works Co. vs. Hawkesford, [(1859) 6 CB

(NS) 336, 356], wherein it has been observed as

under;

"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and a peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

Further, in the case of an election dispute,

the law does not contemplate two attacks; one, prior

to the holding of the poll and, the second, thereafter.

Although there is no constitutional bar to the exercise

of power in a writ jurisdiction in respect of election to

the local bodies such as Municipalities, Panchayaths

etc, or to bodies constituted under a statute such as a

co-operative society or a Union of Co-operative

Societies, as in the instant case, nevertheless courts

are loathe to exercise discretion and interfere in such

matters prior to the completion of election process. In

Sangram Singh vs. Election Tribunal, Kotah, [AIR

1955 SC 425], the Hon''ble Supreme Court has held

that no legislature can impose limitations on the

constitutional powers (under Article 226 ) but it is a

sound exercise of discretion to bear in mind, the policy

of the legislature to have disputes about the special

rights decided as speedily as may be. Therefore, it is

necessary to resolve election disputes speedily

through the machinery of election petition and the

court in exercise of its discretion should always decline

to invoke its writ jurisdiction in an election dispute, if

an alternative remedy of an election petition is

available. The aforesaid observations laying down a

salutary principle has been subsequently reiterated in

a decision of the Supreme Court in S.T. Muthusamy

vs. Natarajan, in which, the judgment of the High

Court was set aside and the writ petition filed under

Article 226 was dismissed.

Therefore in the matter of an election

dispute although the bar under Article 329(b) of the

Constitution is expressed to only elections held to the

Parliament or the State Legislature, nevertheless, the

principle emanating from that Article has been applied

in respect of all other elections including that of local

bodies or authorities constituted by a statute or to

bodies formed under a statute. Therefore, we find that

the aforesaid decisions would clearly imply that even

in the case of improper rejection of a nomination of a

candidate, the aggrieved party cannot rush to the

High Court to file a writ petition under Article 226 of

the Constitution, but would have to avail of the

remedy by way of election petition which is a statutory

remedy. Hence, the Hon''ble Single Judge was right in

dismissing the writ petition on the ground of

availability of an alternative remedy. However, the

controversy does not end in the instant case.

In so far as this case is concerned, a

further question would have to be considered and

answered. The question is with regard to this court

entertaining the writ petition out of which these

appeals arise granting an interim order on May 22,

2014, the said interim order being given effect to, the

petitioner being successful in the election held

pursuant to the interim order dated May 22, 2014 and

thereafter the question for consideration being framed

and rule nisi being issued in the writ petition and the

dismissal of the writ petition on the ground of

maintainability. The point is, as to whether, after the

aforesaid actions being taken in the writ petition,

Hon''ble Single Judge could have dismissed the same

on the ground of maintainability. In this context,

reliance has been placed on a decision of the Hon''ble

Supreme Court in the case of Smt. Kanak referred to

above to drive home the proposition that it is one

thing to say that the High Court in exercise of its

jurisdiction under Article 226 of the Constitution may

not grant a relief inter alia on the ground of existence

of an alternative remedy but another thing to say that

the writ petition was not maintainable at all. That

when the matter is to be argued on merits after being

entertained, it would not be proper to dismiss the writ

petition on the ground of availability of an alternative

remedy. That in the instant case, the Hon''ble Single

Judge could not have done the same, is the

submission of the learned senior counsel for the

appellants.

Learned senior counsel for the respondent

has placed reliance on State of Uttar Pradesh vs.

Uttar Pradesh Rajya Khanija Vikas Nigamaa

[(2008) 2 SCC 675], to submit that it is neither a

legal position nor is there a proposition that once a

petition is admitted, it could never be dismissed on

the ground of alternative remedy. In the aforesaid

decision, the Hon''ble Supreme Court has categorically

held that issuance of rule nisi or passing of an interim

order in a writ petition may be a relevant consideration for not dismissing a petition if it appears

to the High Court that the matter could be decided by

a writ court. That the said proposition has also been

applied in several cases even if alternative remedy is

available, but in the aforesaid case, the Hon''ble

Supreme Court has categorically held that "in our

judgment, however, it cannot be laid down as a

proposition of law that when once a petition is

admitted it could never be dismissed on the ground of

alternative remedy. If such bald contention is upheld,

even this court cannot order dismissal of a writ

petition which ought not to have been entertained by

the High Court under Article 226 of the Constitution in

view of availability of alternative and equally

efficacious remedy to the aggrieved party, once the

High Court has entertained a writ petition and granted

the relief to the petitioner."

But, to buttress the contention that the writ

petition was maintainable despite the availability of an

alternative remedy L. Hirday Narain vs. Income

Tax Officer, Bareilly, [1970(2) SCC 355], which

arises under the Income Tax Act, 1922, has been

pressed into service by the learned senior counsel for

the appellant. It was observed therein that even

though a revision application could have been moved

for an order correcting the order of the Income Tax

Officer under Section 35 of the aforesaid Act, but was

not availed of, the High Court could have entertained

the writ petition on merits. In other words, it could

not be held that the High Court would be justified in

dismissing as not maintainable the petition, which was

entertained and was heard on merits. But the

aforesaid observations now stand watered down in

view of the judgment of the Hon''ble Supreme Court in

State of Uttar Pradesh vs. Uttar Pradesh Rajya Khanija

Vikas Nigama [(2008) 2 SCC 675], referred to above.

Reliance has also been placed on Pundalik

vs. State of Maharashtra [(2005) 7 SCC 181] to

contend that the Hon''ble Supreme Court had

interfered in an election dispute pertaining to

preparation of list of voters, which is one of the stages

of election. That in the instant case also, prior to the

poll, this court could have considered the issue of

rejection of nomination of the petitioner on merits.

However, in our view, the said decision cannot apply

to the instant case as in the aforementioned decision,

dealt with an election to a co-operative society under

the relevant rules, the Collector was obliged to effect

change in the name of the representative or delegate

entitled to vote when the same was intimated to the

Collector by a co-operative society. The same not

having been done, called for interference. The

interference was at the stage of preparation of voters''

list and not with regard to rejection of a nomination as

in the instant case. In M/s.Nandhi Minerals vs.

State of Karnataka [2011 SCC Online Kar. 3174],

a Division Bench of this court was of the view that the

writ petition cannot be dismissed on the ground of

availability of an alternative remedy when rule nisi

had been issued. Further, in S.N.Srinivas Murthy vs.

The Corporation of the City of Bangalore by its

Commissioner [ILR 1998 Kar. 101], Hon''ble Single

Judge of this court held that when an appeal was

admitted, it could not be rejected on the grounds of

alternative remedy after lapse of six years. Similarly,

when a writ petition is admitted for final hearing

notwithstanding the existence of an alternative

remedy of an appeal, the same cannot be dismissed

years later on the ground that the petitioners ought to

have exhausted the alternative remedy. Reference

has also been made to Gowtham Tendulkar vs.

State of Karnataka [ILR 2000 Kar. 1343], wherein

it has been observed that once the writ petition is

entertained by the High Court, it is not desirable to

dismiss the same on the ground that the petitioner

has an alternative remedy. Reliance has also been

place on L.Shivanna vs. State of Karnataka [ILR

1988 Kar.2121] wherein, it has been held that

preparation of electoral rolls is not a process of

election. A challenge to inclusion of ineligible persons

in electoral roll not open to adjudication after election,

the only remedy to the aggrieved citizen is under

Article 226. The aforesaid decisions, in our view, do

not further the case of the appellants in view of the

latest dictum of the Hon''ble Supreme Court in State of

U.P. vs. Uttar Pradesh Rajya Khanija Vikas Nigama .

Further, reliance was also placed on the

judgment of the Division Bench of this Court in

L.Ramakrishnappa by the appellants'' senior counsel to

the effect that in that case, in the context of improper

acceptance of a nomination paper of a candidate, the

writ petition was held to be maintainable, as it stood

on a different footing, and in an election petition, the

relief which could be granted in a writ petition cannot

be granted, if an election petition is filed on the

conclusion of the electoral process. No doubt, in

L.Ramakrishnappa''s case while raising two precise

questions, the Division Bench of this Court has held to

the effect that under Article 226 of the Constitution,

the High Court has the jurisdiction to interfere with

the illegality committed in the course of holding

election to the office of any authority/body which is

regulated by statutory provisions (other than the

election to the Parliament and State Legislature),

notwithstanding the existence of an alternative

remedy by way of Election Petition, if violation of law

is established. In other words, such a writ petition is

maintainable. At the same time, the Division Bench

has also held that "However, the jurisdiction of this

Court under Article 226 being an extraordinary one,

this Court as a general rule will not and should not

entertain a Petition in matters connected with such

elections even if any illegality is shown to have been

committed, if the law provides an effective alternative

remedy and the illegality is such in respect of which

adequate relief could be granted in an Election

Petition. In other words, this Court will not and should

not entertain Writ Petition lightly, as held by the

Supreme Court in the case of Muthusamy." i.e.

S.T.Muthusami vs. K.Natarajan and Others,

[(1988) 1 SCC 572] cited above.

The observation in L.Ramakrishnappa''s

case have been considered by the Full Bench of this

court in Nanjundaswamy vs. Assistant Registrar

of Co-operative Societies, [ILR 1992 KAR 972]

and it has been categorically held that the remedy of

an Election Petition is the remedy that is normally

available in election disputes. The principle of law is

that, when once the election process has begun it

should not be interfered with. In that case also, the

dispute arose with regard to the filing of nomination

paper for being elected to the Committee of

Management of a Co-operative Society. It was held

that the remedy of election dispute was available

under Section 70 of the Karnataka Co-operative

Societies Act, 1959 in order to assail the improper

rejection of the nomination paper of a candidate. The

Full bench considered the correctness of the

judgments of this court in Maruthi vs. State of

Karnataka, [ILR 1990 KAR 1378] and

B.Gurumallappa vs. State of Karnataka, [ILR

1991 KAR 577] and it opined that there so no

divergence of opinion in the two judgments. According

to the Full Bench, Maruthi''s case lays down the law as

set out therein and B.Gurumallappa''s case is an

illustration of the principle that the High Court could

exercise power in election disputes only in the most

extraordinary circumstances. The action of the

Election Officer in that case to hold an election on the

basis of a calendar of events issued seven years

earlier although three candidates who had filed their

nominations pursuant thereto, had died, was an

extraordinary circumstance calling for interference.

Therefore, in Gurumallappa''s case, the interference

was on the peculiar facts of that case, but the Full

Bench found that in Nanjundaswamy''s case no

extraordinary circumstances arose to exercise

discretion and interfere in the matter pertaining to

improper rejection of a nomination. Hence, the writ

petition was dismissed. Therefore, reliance placed on

L.Ramakrishnappa''s case by the appellant is of no

assistance in view of the decision of the Hon''ble

Supreme Court in S.T.Muthusami as well as the

opinion of the Full Bench in Nanjundaswamy''s case.

Therefore, on the second contention also,

we hold that despite issuance of rule nisi, the Hon''ble

Single Judge was justified in dismissing the writ

petition on the ground of maintainability.

W.A.No.4556/2015, which is filed by the

President of appellant Nos.1 to 9/Milk Producers Co-

operative Societies have contended that in view of the

change in the bye-laws of respondent No.4/society, it

was only the President of the Member Societies

including the appellants herein who could vote on

behalf of their respective societies. Hon''ble Single

Judge has not taken note of the amendment made to

the bye-laws on January 28, 2015 and instead, has

directed that the election process be completed from

the stage it was on May 25, 2014. Hon''ble Single

Judge has contended that, pursuant to that direction

the poll was held on September 27, 2015 and instead

of the Presidents who were entitled to cast their votes,

the Directors cast their votes although they were

ineligible. Hence, the election held on September 27,

2015 pursuant to the direction issued by the Hon''ble

Single Judge is invalid. Therefore, it is contended by

learned senior counsel that the direction of the

Hon''ble Single Judge be modified and fresh election be

held as per the amended bye-laws, according to

which, only the President of the co-operative societies

would be permitted to cast their vote. We do not

think that such a direction could have been issued by

the Hon''ble Single Judge, because the controversy in

the writ petition was with regard to the rejection of

nomination of the petitioner in respect of the calendar

of events issued for conducting the poll on May 25,

2015. Further, the voters'' list was prepared having

regard to the extant bye-laws. When the Hon''ble

Single Judge has dismissed the writ petition on the

ground of maintainability, the consequential direction

was to conduct the election bearing in mind the

rejection of nomination and to proceed from that

stage onwards. Therefore, the controversy in these

appeals cannot be enlarged so as to take note of

subsequent events so as to re-do the entire exercise

by keeping in mind the amendment made to the bye-

laws. Hence, there is no merit in the writ appeals filed

by the Presidents nine co-operative societies. The

same is liable to be dismissed.

W.A.No.4514/2015 is filed against order

dated September 26, 2015, passed by the Hon''ble

Single Judge, dismissing the writ petition. That the

writ petition assailed the election held on September

27, 2015, pursuant to the direction issued by the

Hon''ble Single Judge on September 03, 2015. As the

order dated September 03, 2015 is being affirmed in

this judgment and for the very same reasons, this writ

appeal is also liable to be dismissed.

As far as W.A.No.4515/2015 is concerned,

the same is filed by a Member of respondent No.4/Milk

Union raising almost similar contentions as in

W.A.No.4556/2015. It is contended that the election

was conducted on September 27, 2015, under the old

bye-laws and not under the amended bye-laws in

terms of the direction issued by the Hon''ble Single

Judge. That the Hon''ble Single Judge was not right in

dismissing the writ petition as not maintainable.

Further, Hon''ble Single Judge ought not to have

directed that the election be conducted from the stage

it was interfered with by this court by granting an

interim order on May 22, 2014. That there was also a

change in the factual position inasmuch as there was

a new Board of Management, which had been

constituted in the Member Societies of respondent

No.4 - Milk Union. Also, in view of the amended bye-

laws, it is only the President of the Member Societies

who alone could cast their votes and the directors of

the said societies could not have cast their votes.

Further, in the interregnum, in respect of thirteen

Member Societies, the Board of Directors and the

President had changed and the voters who were

delegated to cast their votes in the appeal held on

September 27, 2015 were neither Directors nor

Presidents. That in respect of Huluvadi Milk Producers

Co-operative Societies, the voter had died on July 08,

2014 and hence, there was no vote cast on behalf of

that society when the poll was held on September 27,

2015. These aspects have not been taken note of, by

the Hon''ble Single Judge. Hence, it is contended that

the consequential direction be set aside and a fresh

direction be issued to the Returning Officer to conduct

the poll in terms of the amended bye-laws. For the

reasons which we have assigned for dismissing

W.A.No.4556/2015, we hold that this appeal is also

liable to be dismissed.

Hon''ble Single Judge was justified in

directing that the election process be continued from

the stage it was interfered with by this court by

granting an interim order on May 22, 2014, by

dissolving that order. When the writ petition was held

to be not maintainable, any action taken pursuant to

the interim order granted by this court would also not

survive and hence, the Hon''ble Single Judge has also

dissolved the interim order. When the writ petition

was dismissed as not maintainable, the interim order

dated May 22, 2015 could not have had an over

arching effect and thereby, permitting petitioner, who

was successful in the poll held on May 24, 2015 to

continue in office. Consequently, the poll conducted

on May 25, 2015 has been virtually set at naught and

a direction has been issued to complete the election

process with effect from May 22, 2014.

In the result, we dismiss all the writ

appeals as being devoid of merit. Pursuant to the

directions issued by the Hon''ble Single Judge as well

as by us on September 26, 2015, the poll was

conducted on September 27, 2015, but a direction

was issued not to declare the result of the said poll.

As we are dismissing the writ appeals, we now direct

the respondent/Returning Officer to declare the result

of the poll conducted on September 27, 2015 and

accordingly complete the election process.

In view of the dismissal of the appeals, the

pending interlocutory applications shall stand

disposed.

Parties to bear their respective costs.