NARAYAN MAHADEV KOLAMANAKAR vs STATE OF KARNATAKA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 15 DAY OF OCTOBER, 2026
R
PRESENT
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
THE HON'BLE MRS JUSTICE HEMA KULKARNI
WRIT APPEAL NO.100974 OF 2026 (CS-EL/M)
BETWEEN:
1. NARAYAN MAHADEV KOLAMANAKAR,
AGED BOUT 53 YEARS,
OCCUPATION: AGRICULTURE,
R/O: KHANAPUR,
DISTRICT: BELAGAVI – 590002.
Digitally signed
by RAKESH S
HARIHAR
Location: High
Court of
Karnataka,
Dharwad Bench
2. MARUTHI BHIKU CHIGULKAR,
AGED ABOUT: 58 YEARS,
OCCUPATION: AGRICULTURE,
R/O: DISTRICT: BELAGAVI – 590002.
…APPELLANTS
(BY SRI. MALLIKARJUNASWAMY B. HIREMATH,ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF CO OPERATION,
REPRESENTED BY ITS SECRETARY,
M.S. BUILDING, BENGALURU – 560001.
2. THE DEPUTY COMMISSIONER,
BELAGAVI DISTRICT,
BELAGAVI – 590002.
3. THE DEPUTY REGISTRAR OF
CO OPERATIVE SOCIETIES,
BELAGAVI DIVISION,
BELAGAVI – 590002.
4. THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
BELAGAVI SUB DIVISION,
BELAGAVI – 590002.
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5. THE RETURNING OFFICER AND SUPERINTENDENT
OF CO OPERATIVE SOCIETIES,
KANAKAMBI PRIMARY AGRICULTURE CREDIT
CO OPERATIVE SOCIETY LTD., AMATE,
TALUK: KHANAPUR, DISTRICT: BELAGAVI.
6. THE SECRETARY,
KANAKUMBI PRIMARY AGRICULTURAL CREDIT,
CO OPERATIVE SOCIETY LTD.,
AMATE, TALUK: KHANAPUR,
DISTRICT: BELAGAVI – 590002.
…RESPONDENTS
(BY SRI. RAKESH M. BILKI, GA FOR R1 TO R4;
SRI. BHARAMAGOUDAR, ADVOCATE FOR R5;
SMT. SANJANA S. MUDHOL, ADVOCATE FOR R6)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE WRIT
APPEAL TO SET ASIDE THE ORDER DATED 10.09.2026 PASSED BY
THE LEARNED SINGLE JUDGE IN W.P. NO.102946/2026 (CS-EL/M)
TO CONSEQUENTLY, ALLOW THE WRIT PETITION AND QUASH THE
CALENDAR OF EVENTS DATED 23.03.2026 AT ANNEXURE-B ISSUED
BY RESPONDENT NO.5 AND DIRECT PREPARATION AND
PUBLICATION OF THE FINAL VOTERS LIST IN ACCORDANCE WITH
THE APPLICABLE STATUTORY PROVISIONS, BEFORE PROCEEDING
WITH THE ELECTION, IF SUCH RELIEF REMAINS LEGALLY AND
FACTUALLY AVAILABLE AND ETC.
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
AND
HON'BLE MRS JUSTICE HEMA KULKARNI
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.NAGAPRASANNA )
The appellants are before us calling in question the order
dated 10.09.2026 in Writ Petition No.102946/2026, by which
the learned Single Judge declines to interfere with the election
process on the score that the calendar of events had already
been notified.
2. Heard the learned counsel Sri.Mallikarjunswamy B
Hiremath appearing for the appellants; learned Additional
Government Advocate Sri.Rakesh Bilki for respondents No.1 to
4/State; learned counsel Sri.Bharamagoudar appearing for
respondent No.5/Returning Officer and Ms.Sanjana Mudhol,
learned counsel representing respondent No.6/Society and
have perused the material on record.
th
3. The appellants, members of the 6
respondent/Society, sought to participate in the election for the
Managing Committee of the Society. The appellants are said to
have raised objections to the provisional voters’ list.
Notwithstanding the objections of the appellants, respondent
No.5 notified the calendar of events scheduling the elections to
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be held on 25.04.2026 before the final voters’ list was
published. This is challenged by the appellants before the
learned Single Judge on the score that the calendar of events
th
could not have been notified by the Administrator of 6
respondent/Society without the lawful finalization and
publication of final voters list.
4. The learned Single Judge declines to entertain the
writ petition by the following order and on the following
reasons:
“In this petition, the petitioners, claiming to be
members of respondent No.6-Co-operative Society and
being desirous of participating in the election to the
Managing Committee of the said Society, are seeking the
following reliefs:
a) Issue a writ of certiorari quashing the
calendar of events dated 23.03.2026 issued by
the 5th respondent produced at Annexure-B.
b) Issue a writ of mandamus directing
respondents to prepare and publish final voters
list in accordance with Rules 13,13-d and 14 of
Karnataka Co-Operative Societies Rules, 1960
before proceeding with election and etc.
2. Admittedly, the calendar of events dated
23.03.2026 has been issued by respondent No.5 as per
Annexure-B, in terms of which the elections were
scheduled to be held on 25.04.2026. Counsel for the
petitioners, taking this Court through the records, submits
that an exercise of conducting the election would arise
only if the final list of members eligible to vote is
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published in terms of Rule 13 of the Karnataka Co-
operative Societies Rules, 19601. Non-compliance with
the said requirement would render the entire election
process infructuous and redundant. Therefore, he insists
that no purpose would be served in allowing the elections
to proceed as per the impugned calendar of events.
3. He further submits that the final list of voters
was brought to the notice of the petitioners only when the
objection statements were filed before respondent No.4
on 22.04.2026, by which time, as per the impugned
calendar of events, only two days would be left for the
actual polling. The petitioners would, therefore, be
deprived of their opportunity of submitting their
nominations even as per the impugned calendar of
events. Therefore, he submits that the entire process of
election is riddled with illegality, requiring indulgence at
the hands of this Court.
4. Counsel for the respondent, on the other
hand, relying upon the judgment of this Court in the case
of Mohammad Beary and others v. The State of
Karnataka2 and in the case of Manjappa S/o Irappa Naik
and others v. The State of Karnataka and relying of
Judgment of the Apex Court in the case of Meenakshi
Natrajan v. Election Commission of India and Anr.,
submits that it is now well settled that once the calendar
of events is issued, the Court shall not interfere in the
process unless the interference is for the cause of
advancement of the election.
5. She submits the relief sought for in the
instant case questioning the preparation of the final list,
would indeed result in stalling the election process, which
is contrary to the settled principles of law. Hence, she
seeks for rejection of petition.
6. Counsel to petitioners does not dispute the
position of law. However, he submits that the interim
order granted be extended by two weeks, enabling the
petitioners to raise the election dispute in the manner
provided under law.
7. This Court unable to accept that said plea
either, inasmuch as an election petition would arise only
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after conclusion of the election process, howsoever bad it
is.
8. In that view of the matter, petition is
dismissed.
9. Liberty is reserved to the petitioners to raise
all such disputes after conclusion of election, if so advised.
10. The election process shall continue from the
stage where it was stopped.”
The learned Single Judge, after recording the contentions of
each of the parties, observes that the judgments of the Apex
Court would clearly indicate that the Court exercising its
jurisdiction under Article 226 of the Constitution of India should
not interfere in the process unless the interference is for cause
of advancement towards the election.
5. Learned counsel for the appellants would vehemently
contend that notifying the calendar of events before even the
final voters’ list is finalized would fall within the exception for
interference.
6. The contention of the learned counsel for the
appellants Sri. Mallikarjunswamy B Hiremath nowhere would
advance the election but stall the election that is already set
into motion.
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7. The learned counsel Ms.Sanjana Mudhol
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representing the 6 respondent/Society would seek to place
reliance upon a plethora of judgments on the issue that once
the calendar of events is notified, the Court should not interfere
under Article 226 of the Constitution of India.
8. The appellants are before us in this intra-Court
appeal and the law would not change, when it travels from the
doors of the learned Single Judge to before us.
9. The issue in the lis is well-settled by the law laid
down by the Apex Court, right from the judgment rendered in
the case of N.P. PONNUSWAMI v. RETURNING OFFICER,
1
NAMAKKAL CONSTITUENCY , wherein it is held that once the
calendar of events is notified, interference in the process of
election is not what is empowered under Article 226 of the
Constitution of India.
9.1. The Apex Court in the case of N.P. PONNUSWAMI
supra has held as follows:
1
(1952) 1 SCC 94
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“…. …. ….
15. The question now arises whether the law of
elections in this country contemplates that there should
be two attacks on matters connected with election
proceedings, one while they are going on by invoking the
extraordinary jurisdiction of the High Court under Article
226 of the Constitution (the ordinary jurisdiction of the
courts having been expressly excluded), and another
after they have been completed by means of an election
petition. In my opinion, to affirm such a position would be
contrary to the scheme of Part XV of the Constitution and
the Representation of the People Act, which, as I shall
point out later, seems to be that any matter which has
the effect of vitiating an election should be brought up
only at the appropriate stage in an appropriate manner
before a Special Tribunal and should not be brought up at
an intermediate stage before any court. It seems to me
that under the election law, the only significance which
the rejection of a nomination paper has consists in the
fact that it can be used as a ground to call the election in
question. Article 329( b ) was apparently enacted to
prescribe the manner in which and the stage at which this
ground and other grounds which may be raised under the
law to call the election in question, could be urged. I think
it follows by necessary implication from the language of
this provision that those grounds cannot be urged in any
other manner, at any other stage and before any other
court. If the grounds on which an election can be
called in question could be raised at an earlier stage
and errors, if any, are rectified, there will be no
meaning in enacting a provision like Article 329( b )
and in setting up a Special Tribunal. Any other
meaning ascribed to the words used in the article
would lead to anomalies, which the Constitution
could not have contemplated, one of them being
that conflicting views may be expressed by the High
Court at the pre-polling stage and by the Election
Tribunal which is to be an independent body, at the
stage when the matter is brought up before it.
…. …. ….
18. The provisions of the Act which are material to
the present discussion are Sections 80, 100, 105 and
170, and the provisions of Chapter II of Part IV dealing
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with the form of election petitions, their contents and the
reliefs which may be sought in them. Section 80, which is
drafted in almost the same language as Article 329( b ),
provides that “no election shall be called in question
except by an election petition presented in
accordance with the provisions of this Part”.
Section 100, as we have already seen, provides for
the grounds on which an election may be called in
question, one of which is the improper rejection of
a nomination paper. Section 105 says that “every
order of the Tribunal made under this Act shall be
final and conclusive”. Section 170 provides that:
“ 170. Jurisdiction of civil courts
barred .— No civil court shall have
jurisdiction to question the legality of any
action taken or of any decision given by the
Returning Officer or by any other person
appointed under this Act in connection with
an election.”
These are the main provisions regarding
election matters being judicially dealt with, and it
should be noted that there is no provision anywhere
to the effect that anything connected with elections
can be questioned at an intermediate stage.
…. …. ….
20. It was argued that since the
Representation of the People Act was enacted
subject to the provisions of the Constitution, it
cannot bar the jurisdiction of the High Court to
issue writs under Article 226 of the Constitution.
This argument however is completely shut out by
reading the Act along with Article 329( b ). It will be
noticed that the language used in that article and in
Section 80 of the Act is almost identical, with this
difference only that the article is preceded by the
words “notwithstanding anything in this
Constitution”. I think that those words are quite apt
to exclude the jurisdiction of the High Court to deal
with any matter which may arise while the elections
are in progress.
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…. …. ….
22. It appears that similar language was used in
the earlier statutes, and it is noteworthy that it has never
been held in England that the improper rejection of a
nomination paper can be the subject of a writ of certiorari
or mandamus. On the other hand, it was conceded at the
Bar that the question of improper rejection of a
nomination paper has always been brought up in that
country before the appropriate tribunal by means of an
election petition after the conclusion of the election. It is
true that there is no direct decision holding that the
words used in the relevant provisions exclude the
jurisdiction of the High Court to issue appropriate
prerogative writs at an intermediate stage of the election,
but the total absence of any such decision can be
accounted for only on the view that the provisions in
question have been generally understood to have that
effect.
…. …. ….
24. It may be pointed out that Article 329( b ) must
be read as complementary to clause ( a ) of that article.
Clause ( a ) bars the jurisdiction of the courts with regard
to such law as may be made under Articles 327 and 328
relating to the delimitation of constituencies or the
allotment of seats to such constituencies. It was conceded
before us that Article 329( b ) ousts the jurisdiction of the
courts with regard to matters arising between the
commencement of the polling and the final selection. The
question which has to be asked is what conceivable
reason the legislature could have had to leave only
matters connected with nominations subject to the
jurisdiction of the High Court under Article 226 of
the Constitution. If Part XV of the Constitution is a
code by itself i.e. it creates rights and provides for
their enforcement by a Special Tribunal to the
exclusion of all courts including the High Court,
there can be no reason for assuming that the
Constitution left one small part of the election
process to be made the subject-matter of contest
before the High Courts and thereby upset the time
schedule of the elections. The more reasonable view
seems to be that Article 329 covers all “electoral
matters”.
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25. The conclusions which I have arrived at may be
summed up briefly as follows:
( 1 ) Having regard to the important functions which the
legislatures have to perform in democratic countries, it
has always been recognised to be a matter of first
importance that elections should be concluded as early as
possible according to time schedule and all controversial
matters and all disputes arising out of elections should be
postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or
protracted.
( 2 ) In conformity with this principle, the scheme of the
election law in this country as well as in England is that
no significance should be attached to anything which does
not affect the “election”; and if any irregularities are
committed while it is in progress and they belong to
the category or class which, under the law by which
elections are governed, would have the effect of
vitiating the “election” and enable the person
affected to call it in question, they should be
brought up before a Special Tribunal by means of
an election petition and not be made the subject of
a dispute before any court while the election is in
progress. ”
9.2. The Apex Court in the case of INDERJIT BARUA v.
2
ELECTION COMMISSION OF INDIA , has held as follows:
“…. …. ….
2.In the first place. Article 329( b ) of the
Constitution bars any challenge to the impugned
elections by a writ petition under Article 226 as also
on the ground that the electoral rolls on the basis of
which the impugned elections were held were
invalid. The petitioners sought to escape from the ban of
Article 329( b ) by contending that they are challenging the
impugned elections as a whole and not any individual
2
(1985) 1 SCC 21
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election and that the ban of Article 329( b ) therefore does
not stand in the way of the writ petitions filed by them
challenging the impugned elections. But, we do not think
this escape route is open to the petitioners. There is in
the Representation of the People Act, 1951 no concept of
elections as a whole. What that Act contemplates is
election from each constituency and it is that election
which is liable to be challenged by filing an election
petition. It may be that there is a common ground which
may vitiate the elections from all the constituencies, but
even so it is the election from each constituency which
has to be challenged though the ground of challenge may
be identical. Even where in form the challenge is to the
elections as a whole, in effect and substance what is
challenged is election from each constituency and Article
329(6) must therefore be held to be attracted.
3. We are of the view that once the final electoral
rolls are published and elections are held on the
basis of such electoral rolls, it is not open to anyone
to challenge the election from any constituency or
constituencies on the ground that the electoral rolls
were defective. That is not a ground available for
challenging an election under Section 100 of the
Representation of People Act, 1951. The finality of the
electoral rolls cannot be assailed in a proceeding
challenging the validity of an election held on the basis of
such electoral rolls vide Kabul Singh v. Kundan Singh
[(1969) 2 SCC 452 : (1970) 1 SCR 845 : AIR 1970 SC
340 : 42 ELR 325] . Article 329 ( b ) in our opinion clearly
bars any writ petition challenging the impugned elections
on the ground that the electoral rolls of 1979 on the basis
of which the impugned elections were held were invalid.”
9.3. The Apex Court in the case of SHRI SANT
SADGURU JANARDAN SWAMI (MOINGIRI MAHARAJ)
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SAHAKARI DUGDHA UTPADAK SANSTHA v. STATE OF
3
MAHARASHTRA , has held as follows:
“…. …. ….
9. If the contention of the appellants is that
there was a breach of rule or certain mandatory
provisions of the Rules were not complied with while
preparing the electoral roll, the same could be challenged
under Rule 81( d )( iv ) of the Rules by means of an election
petition. In view that the preparation of electoral roll
is part of the election process and if there is any
breach of the Rules in preparing the electoral roll,
the same can be called in question after the
declaration of the result of the election by means of
an election petition before the Tribunal .
…. …. ….
12.In view of our finding that preparation of
the electoral roll being an intermediate stage in the
process of election of the Managing Committee of a
specified society and the election process having
been set in motion, it is well settled that the High
Court should not stay the continuation of the
election process even though there may be some
alleged illegality or breach of rules while preparing
the electoral roll.It is not disputed that the election
in question has already been held and the result
thereof has been stayed by an order of this Court,
and once the result of the election is declared, it
would be open to the appellants to challenge the
election of the returned candidate, if aggrieved, by
means of an election petition before the Election
Tribunal. ”
9.4. The Apex Court in the case of SHAJI K. JOSEPH v.
4
V. VISWANATH , has held as follows:
3
(2001) 8 SCC 509
4
(2016) 4 SCC 429
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“…. …. ….
15. In our opinion, the High Court was not right
in interfering with the process of election especially
when the process of election had started upon
publication of the election programme on 27-1-
2011 and more particularly when an alternative
statutory remedy was available to Respondent 1 by
way of referring the dispute to the Central
Government as per the provisions of Section 5 of
the Act read with Regulation 20 of the Regulations .
So far as the issue with regard to eligibility of
Respondent 1 for contesting the election is
concerned, though prima facie it appears that
Respondent 1 could contest the election, we do not
propose to go into the said issue because, in our
opinion, as per the settled law, the High Court
should not have interfered with the election after
the process of election had commenced.The
judgments referred to hereinabove clearly show
thesettled position of law to the effect that
whenever the process of election starts, normally
courts should not interfere with the process of
election for the simple reason that if the process of
election is interfered with by the courts, possibly no
election would be completed without the court's
order . Very often, for frivolous reasons, candidates or
others approach the courts and by virtue of interim orders
passed by courts, the election is delayed or cancelled and
in such a case the basic purpose of having election and
getting an elected body to run the administration is
frustrated. For the aforestated reasons, this Court has
taken a view that all disputes with regard to election
should be dealt with only after completion of the election.
16. This Court, in N.P. Ponnuswami v. Returning
Officer [ N.P. Ponnuswami v. Returning Officer ,
(1952) 1 SCC 94 : AIR 1952 SC 64] has held that
once the election process starts, it would not be
proper for the courts to interfere with the election
process. Similar view was taken by this Court in
Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha v.
State of Maharashtra [ Shri Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakari Dugdha
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Utpadak Sanstha v. State of Maharashtra , (2001) 8
SCC 509].”
9.5. The Apex Court in its latest judgment rendered in
the case of MEENAKSHI NATARAJAN v. ELECTION
5
COMMISSION OF INDIA , has held as follows:
“…. …. ….
10. The principles laid down in Ponnuswami
(supra) has been followed by this Court in all
election related disputes and whenever an attempt
is made to invoke this Court's or the High Court's
writ jurisdiction to interject during the process of
conduct of election, on every occasion, the
Constitutional Court has rejected such an attempt
keeping in view the principle contained in Article
329(b) of the Constitution of India.
…. …. ….
12.It is vehemently put forth by Dr. Abhishek
Manu Singhvi that in a case of this nature where the
illegality in rejection of nomination is glaring and
manifest, this Court must step in to curb the
injustice, otherwise the very sanctity of the election
process would be affected. However, this argument
cannot be accepted in view of the law laid down in
Ponnuswami (supra). If this Court accepts such
argument to find out such glaring cases, which are
required to be interfered with under Articles 32 or
226 of the Constitution of India and the other set of
cases in which the rejection is not so improper
prima facie relegating them to avail the remedy of
filing election petition, this Court would be reading
some principle which is not provided for under
Article 329 of the Constitution of India. We are
afraid, any such interpretation, that in some cases
this Court can entertain a petition wherein a
candidate's nomination paper has been improperly
5
2026 SCC OnLine SC 1133
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rejected, while leaving some others to avail the
remedy of filing an election petition before the
election tribunal, should not be encouraged, being
in direct conflict with the law laid down in
Ponnuswami (supra). ”
9.6. A little after the judgments of the Apex Court in the
cases of N.P. PONNUSWAMI supra and INDERJIT BARUA
supra , a Division Bench of this Court, in the case of J. ROBERT
6
v. RAM JETHMALANI , has held as follows:
“…. …. ….
35. In our opinion, the submission of the learned
Counsel overlooks the correct position in law. It is a well
settled principle, that if a Court has got jurisdiction to
decide a case but not an issue involved in the said
case, the course open to the party concerned is to
have the said case pending and to have the issue
settled by the Court which has the competence to
decide that issue and produce the said order before
the Court which has the power to decide a case but
not the said issue . Once such an order of a
Competent Authority deciding the issue is produced
before the Court which has the power to decide the
case, the latter has to take the decision of the
Competent Authority on the issue concerned into
account and to proceed to decide the case in the
light of the said decision. This question even in
relation to a challenge to an election to a
Legislature is not res integra. Such a question has
been answered by the Supreme Court in the case of
Bhagwati Prasad v. Rajeev Gandhi [(1986) 4 SCC 78
: AIR 1986 SC 1534.] . In that case the question
raised was as to whether an elected candidate had
lost the citizenship and therefore not entitled to be
elected as a Member of the Legislature. The Supreme
Court ruled that in an election petition the High Court as
6
ILR 1990 Kar 1907
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an election Court had no jurisdiction to go into the said
question as the jurisdiction to decide whether a person is
a citizen or had ceased to be a citizen, fell within the
exclusive jurisdiction of the authority under the
Citizenship Act. The Supreme Court added that if a
declaration is secured from the authority under the
Citizenship Act to the effect that an elected candidate was
not a citizen on the date when he filed nomination and
therefore ineligible for contesting the election, such a
decision by such Competent Authority could be produced
before the Election Court and the Election Court in
deciding the election petition has to take that decision into
account. The relevant portion of the Judgment reads:—
"
11....The policy behind Section 9(2)
appears to be that the right of citizenship of the
person who is admittedly an Indian citizen should
not be exposed to attack in all forums in the
Country, but should be decided by one authority
in accordance with the prescribed Rules and that
every other Court or authority would have to act
only on the basis of the decision of the prescribed
authority in that behalf and on no other basis.
That being the mandate of the law, even the High
Court trying an election petition can declare an
Indian citizen as having acquired the citizenship
of a foreign State only on the basis of a
declaration made by the Central Government. If
such a declaration made by the Central
Government is produced before a High Court
trying an election petition the High Court has to
give effect to it. If such a declaration is not
forthcoming, the High Court should proceed on
the ground that the candidate concerned has not
ceased to be an Indian citizen. It cannot
independently hold an enquiry into that question
on its own."
(Underlined by us)
Therefore, the only course open to a person, if
he is desirous of challenging election of a person
whose name was illegally included in the electoral
roll, is to secure an order from the Competent
Authority under the Act that the inclusion was
illegal and to produce it along with the election
petition or to file an election petition if he is
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entitled to do so or to get an election petition filed
against the election through a person eligible to file
an election petition and during the pendency of the
election petition secure an order from the
competent Court that the inclusion of the name of
the person was without authority of law and
therefore it should be excluded and to produce the
said order before the Election Court. If such order is
produced, in view of the ratio of the Judgment of the
Supreme Court in the aforesaid case, the Election Court
has to take that into account in deciding the election
petition.
36. In the present case, what has happened is that
an election petition had been filed against the election of
the first respondent and the only ground raised in the
election petition was that the inclusion of the name of the
first respondent in the electoral roll was illegal. This
Court trying an election petition considered the said
issue and dismissed the election petition holding
that in an election petition this Court had no
jurisdiction to go into the question of the legality of
the inclusion of the name of the first responded in
the electoral roll. The election petition was
dismissed on 31-1-1989 and the Judgment is C.
Kannan v. Returning Officer . [ILR 1989 KAR 1081.]
The learned Counsel also brought to our notice that no
appeal has been filed against the said decision and as a
result the said order has become final. Therefore, in our
opinion, the challenge to the legality of the inclusion of
the name of the first respondent in the electoral roll of
Shantinagar assembly constituency has become futile.”
9.7. Another Division Bench of this Court in the case of
7
JAYAMUTHU v. STATE ELECTION COMMISSION , has held
as follows:
7
ILR 2018 Kar 3671
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“…. …. ….
23. 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
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propounded therein would apply with all force to all
elections.
24. N.P. PONNUSWAMI'S case in fact, has been
followed by the Hon'ble Supreme Court in NANHOO
MAL V. HIRA MAL [(1976) 2 SCC 819: 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.
25.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. v. 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
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pursue the course applicable to cases of the
second class. The form given by the statute must
be adopted and adhered to.”
26. 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,
Panchavaths 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 v.
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. Muthus Amy v. Natarajan , in which, the
judgment of the High Court was set-aside and the writ
petition filed under Article 226 was dismissed.
27. 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
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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.”
(Emphasis supplied at each instance)
In the light of the law as elucidated by the Apex Court and the
Division Bench of this Court, noted by us hereinabove, the
appeal must fail with the confirmation of the relief that the
learned Single Judge has granted to the appellants of raising a
dispute at the relevant point in time. Accordingly, the appeal
stands rejected .
As a consequence, pending applications, if any, are also
disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Sd/-
(HEMA KULKARNI)
JUDGE
JTR
CT: ASC
List No.: 1 Sl No.: 11