Revanasiddeshwara K.G. vs State Election Commission

B.S. Patil, J.—Petitioner is the Director of 5th respondent-Katalagere Milk Producers Co-operative Society Ltd., Channagiri. 5th respondent-Society is the member of the 4th respondent-Shimoga Co-operative Milk Producers Union. The members of the 5th respondent-Society are entitled to nominate one of their Directors to represent them in the election to be held to the Board of Directors of the 4th respondent-Union. 6th respondent is another Primary Milk Producers Co-operative Society at Channagiri, having similar privilege to send by way of nominating one of its Directors to represent it in the election of the Board of Directors of 4th respondent-Union.

Petitioner was nominated to vote, propose or contest in the election to the Board of Directors of 4th respondent-Union by the 5th respondent-Society. Likewise, 7th respondent was nominated to represent the 6th respondent-Society. 8th respondent-H.K. Basappa who has been impleaded subsequently represents Kanchugaranahalli Milk Producers Cooperative Society in Channagiri Taluk, as he has been nominated by the said Society to participate and represent in the election to be held to the Board of Directors of the 4th respondent-Union.

On 10.05.2014, calendar of events were published for election to the Board of Directors of the 4th respondent-Union, to elect 14 Directors. The 3rd respondent was the Returning Officer to conduct the election. As per the calendar of events, the last date for filing nominations was 18.05.2014. The scrutiny of nominations was scheduled on 19.05.2014. After the withdrawal of nominations, publication of the names of eligible candidates in the fray was scheduled on 20.05.2014. The election was scheduled on 26.05.2014 and the result of the election was also required to be published on the same day.

On 19.05.2014, the Returning Officer rejected the nomination of the petitioner as per Annexure-F on the ground that the proposer Mr. Suryaprakash S/o. Bujjaraja- 7th respondent who had proposed the name of the petitioner was the nominee of the 6th respondent-Society but was not authorized by his society to propose the name of any other candidate, as he was only authorized to vote in the election to the Board of Directors of the 4th respondent. However, despite the restricted authority given he had proposed the name of the petitioner, therefore, the nomination filed by the petitioner was defective as the person who had proposed his name was not eligible to propose. At this stage, being aggrieved by the rejection of the nomination vide Annexure-F, petitioner has rushed to this Court and has filed this writ petition on 21.05.2014.

The Returning Officer, soon after the rejection of the nomination of the petitioner on 20.05.2014 declared the 8th respondent-H.K. Basappa as elected unopposed to represent the 4th respondent-Union from Channagiri constituency. Petitioner, therefore, has challenged the declaration of the result of the 8th respondent by seeking amendment to the writ petition. He has sought for insertion of an additional prayer to quash Annexure-H-declaration of the result of election for Channagiri, declaring the 8th respondent as having been elected unopposed on 20.05.2014.

Main contentions urged by Mr. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioner are, that as per Section 21(2) of the Karnataka Co-operative Societies Act, 1959 (for short, ''the Act''), the Board of a co-operative society which is a member of another co-operative society may appoint one of the members of the Board to vote on its behalf in the affairs of the other society and it is in exercise of this right, the Board of the 5th respondent-Society had nominated the petitioner to represent the 5th respondent and similarly, the Board of 6th respondent-Society had nominated 7th respondent to represent it in the election to be held to constitute the Board of Directors of the 4th respondent-Union. He urges that once such nomination is made, the candidate who is nominated will not only have the right to vote, but will have a right to propose and also to contest in the elections to the Board of Directors of the 4th respondent-Union. In this connection, he places reliance on Rule 14A of the Karnataka Co-operative Societies Rules, 1960 (for short, the Rules''), to urge that while presenting the nomination paper, each candidate shall in person deliver to the Returning Officer the nomination paper duly completed in Form-XIII and signed by the candidate and another member with right to vote as proposer. He also invites the attention of the Court to Rule 14B of the Rules pertaining to scrutiny of nominations wherein the Returning Officer is required to examine the nomination paper and is enjoined with the power to reject the nomination on the grounds that (i) the candidate is either not qualified or is disqualified for being elected as a Director of the Board/representative under the provisions of the Act, the Rules and the bye-laws; (ii) the signature of the candidate or the proposer on the nomination paper is not genuine.

He also emphasizes the proviso appended to sub-rule (2) to Rule 14B of the Rules, to contend that the nomination paper shall not be rejected merely on the ground of some incorrect description of the name of the candidate or of his proposer and that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. He points out from Rule 14D of the Rules that the Returning Officer shall prepare and publish the list of contesting candidates, i.e., the candidates who are included in the list of validly nominated candidates and who have not withdrawn their candidature.

He also refers to Form-XII to contend that there is nothing to indicate in the prescribed nomination form that only voting power is conferred on the representative/delegate from the primary co-operative society and that he cannot exercise his right to propose the candidature of another person or to contest for election. It is, therefore, contended by him that rejection of the nomination of the petitioner on the ground that the person who had proposed his name viz., 7th respondent did not have the authority from his primary co-operative society viz., the 6th respondent authorizing him to propose the name of the petitioner is illegal.

It is also his contention that the Returning Officer could not have rejected the nomination of the petitioner and could not have declared the 8th respondent as elected unopposed on 20.05.2014 because as per the calendar of events, for each subdivision 4 candidates were required to be elected to the Board of Directors of the 4th respondent-Union, so that each Taluk gets atleast one representative. He urges that for Davangere Sub-Division totally 4 Directors were required to be elected and each voter was entitled to elect 4 Directors, so as to ensure that atleast one represents each Taluk coming within Davangere Sub-Division. Davangere Sub-Division has Davangere, Harihar, Channagiri and Honnali constituencies; as election to elect 4 Directors was to held by permitting the voters in all these 4 taluks to cast 4 votes, unless the Returning Officer had completed the process of election to the entire sub-division, he could not have declared the election of 8th respondent as representing Channagiri constituency. He, therefore, urges that the rejection of the nomination of the petitioner and declaration of the result of the 8th respondent unopposed is done illegally and with ulterior intentions. Hence, this is an extraordinary circumstance, where the petitioner has approached this Court immediately after the rejection of the nomination but before the scheduled date for declaration of result of the election, is what is urged. He further contends that as there is no need to record any evidence or examine any disputed questions of fact, the matter can be disposed of on merits without there being any need to the petitioner to avail the alternative remedy. In this regard, he has placed reliance on the judgment of the Division Bench of this Court in the case of L. Ramakrishnappa Vs. Presiding Officer, .

Mr. Manjunath, learned Counsel appearing for the 8th respondent who is declared as having been elected unopposed, strongly refutes the contentions of the petitioner. He urges that there is suppression of material facts by the petitioner, in as much as, even while filing the writ petition, petitioner was aware that 8th respondent had been declared as elected unopposed. Despite the same, he did not disclose the same in the writ petition, nor challenged the declaration of the result. He has contended that as per the resolution passed by the 6th respondent-Society, the 7th respondent was nominated to represent the said society in the election to be held for the Board of Directors of 4th respondent-Union only by exercising his right to vote and therefore, 7th respondent was not entitled to propose the name of the petitioner but, as he had proposed the name of the petitioner contrary to the resolution passed by his society, the Returning Officer rightly rejected the nomination of the petitioner. He invites the attention of the Court to Annexure-R3 in this regard.

It is strongly urged by him that in a matter where election has been held and results have been declared, the unsuccessful candidate cannot be permitted to avail the remedy under Article 226 of the Constitution to challenge the election by invoking the writ jurisdiction. He has placed strong reliance on the following judgments in this regard.

(i) Nanjundaswamy Vs. Assistant Registrar of Co-operative Societies, ;

(ii) Maruthi and another Vs. State of Karnataka and others, ;

(iii) K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, .

Learned Counsel Mr. Manjunath further contends that Section 21(2) of the Act and Rule 14A of the Rules do not suggest that the Society which nominates one of its Directors to represent it in the election to elect Board of Directors of the 4th respondent-Union cannot place any restriction on the right of the nominee who is the delegate of the society only to cast his vote and not to propose or contest in the election. He has also contended that as per Rule 14G(2), if the number of contesting candidates in any constituency is equal to the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates to be duly elected to fill those seats in Form-XIX. He, therefore, urges that it was not necessary for the Returning Officer to wait till the voting was over in respect of the 4 Taluks coming within Davangere Sub-Division.

Having heard the learned Counsel for both the parties, the points that arise for consideration in this case is.

(i) whether the petitioner has made out an exceptional or extraordinary case to challenge the election of the 8th respondent as Director of the 4th respondent, by invoking writ jurisdiction and that alternative remedy is not efficacious in the facts of the case?

(ii) whether the questions raised in the writ petition with regard to the right of the 6th respondent-society to pass a resolution and restrict the scope of power of the nominee/delegate to represent it before the 4th respondent-Union only by voting and not by proposing the name of another candidate contesting the election, is legal and permissible?

Point Nos. 1 & 2: It cannot be denied that this Court in exercise of the jurisdiction under Article 226 of the Constitution will not interfere with any illegality in the course of election to the elective office of the societies which is regulated by a statutory provision, wherein there is an alternative remedy provided to file an election petition. However, the jurisdiction of this Court under Article 226 of the Constitution can be exercised in exceptional cases, in which illegality committed is patent and does not depend upon investigation of disputed questions of fact and interference would be called for to prevent abuse of power. This is the law laid down in the case of L. Ramakrishnappa Vs. Presiding Officer, ; and Nanjundaswamy Vs. Assistant Registrar of Co-operative Societies, . Therefore, it is clear that the remedy for an election dispute is normally by filing an election petition. Once the election process has begun, normally it should not be interfered with. The alternative remedy of an election petition, in the instant case as provided u/s 70 of the Act, is no doubt available. Whether there is an exceptional or extraordinary circumstance made out in this case, to depart from the normal rule is the matter to be addressed.

The question whether 6th respondent-Society can impose such instruction on its nominee only to vote in the election and not to propose or to contest in the election is the matter that has to be examined with reference to the facts, documents and also by taking note of the provisions of law. The original authority can as well undertake such an exercise and indeed when there is a provision to undertake such an exercise and where an appeal is provided against the decision of the original authority there is all the more no reason to exercise the writ jurisdiction. Merely because the matter involves understanding of the provision of law or examination of the right of the 6th respondent-Society to impose such restrictions on its nominee, this Court will not embark upon an inquiry and return its findings when such question can be effectively examined by the original as well as the appellate authority as provided under the scheme of law.

Therefore, I do not find any exceptional circumstance in this case to examine the validity of the election by entertaining this writ petition. Hence, without expressing any opinion on the merits of the case, this writ petition is dismissed, reserving liberty to the petitioner to raise a dispute u/s 70 of the Act. He is permitted to file an election petition within 15 days from today. If such a petition is filed, without reference to the delay, the concerned authority shall consider the same in accordance with law and dispose of the dispute, expeditiously, at any rate within a period of four months from the date of presentation of the petition. All contentions urged are left open.