Full Judgment Text
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
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DATED THIS THE 24 DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 29014 OF 2023 (CS-EL/M)
BETWEEN:
1 . SRI. B GANGANNA,
S/O BORAIAH,AGED ABOUT 60 YEARS,
RESIDENT OF OLD NO. 1072,
NEW NO. 01, LAKSHMI NIVAS,
TH
15 MAIN ROAD, SRINAGAR,
BENGALURU - 560 050.
2 . SRI HY.B JAYARAMA,
S/O N BORAIAH,AGED ABOUT 68 YEARS,
RESIDENT OF NO. 1519/2,
TH ST
10 CROSS, B.S.K 1 STAGE,
ND
2 BLOCK, ASHOK NAGAR,
BENGALURU - 560 050.
3 . SMT S ASHA,
C/O GANGADHARAMURTHY M.S,
AGED ABOUT 50 YEARS,
RESIDENT NO.1728
TH TH
4 H BLOCK, B.S.K 6 STAGE,
FURTHER EXTENSION,
VRUSHABHAVATHI NAGAR, VTC,
THALAGHATTAPURA,
BENGALURU - 560 062.
4 . SRI GANGADHARAMURTHY M S,
S/O M SHANKARACHAR,
AGED ABOUT 63 YEARS,
RESIDENT NO. 1728
TH TH
4 H BLOCK, B.S.K 6 STAGE,
FURTHER EXTENSION,
VRUSHABHAVATHI NAGAR, VTC,
2
THALAGHATTAPURA, BENGALURU - 560 062.
5 . SMT H V SATHYA SHREE,
W/O T.G UMESH,
AGED ABOUT 47 YEARS,
RESIDENT OF NO. 13/A,
SHAKUGOVINDA NIVASA,
TH TH
6 MAIN 8 D CROSS,
JNANAJYOTHINAGAR, MALLATHAHALLI,
BENGALURU - 560056.
6 . SRI GANGADHARA
S/O CHIKKABOREGOWDA,
AGED ABOUT 60 YEARS,
RESIDENT OF NO.84
ST TH
1 MAIN ROAD, 5 CROSS,
ITTAMADU EXTENSION,
RD
BSK 3 STAGE,BENGALURU - 560 085.
7 . SMT K N PADMAVATHI,
W/O A S SWAMY, AGED ABOUT 35 YEARS,
ABBUR VILLAGE,
ABBUR POST, CHANNAPATNA TALUK,
ABBUR, RAMANAGARA,
RAMANAGARA - 562108.
8 . SRI A S CHANDRASHEKARA,
S/O SHAMBHU GOWDA,
AGED ABOUT 55 YEARS,
RESIDENT OF NO. 457,
TH
15 D CROSS, WOC ROAD,
ND ND
2 STAGE, 2 PHASE,
MAHALAKSHMIPURAM,
BENGALURU - 560 086.
...PETITIONERS
(BY SRI M R RAJAGOPAL, SR. COUNSEL A/W
SRI A C BALARAJ, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA,
REPRESENTED BY ITS
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SECRETARY TO GOVERNMENT,
DEPARTMENT OF CO OPERATION,
M.S BUILDING, DR. B.R AMBEKDAR VEEDHI,
BENGALURU - 560 001.
2 . THE REGISTRAR OF CO-OPERATIVE
SOCIETIES, NO.1 ALI ASKAR ROAD,
BENGALURU - 560 052.
3 . THE STATE CO-OPERATIVE ELECTION AUTHORITY,
RD
3 FLOOR, TTMC A BLOCK,
SHANTHINAGAR BUS STAND,
DOUBLE ROAD, BENGALURU-560027,
REPRESENTED BY ITS SECRETARY.
4 . THE REGISTRAR OF CO-OPERATIVE SOCIETIES AND
ELECTION OFFICER,
STATE CO-OPERATIVE ELECTION AUTHORITY,
RD
3 FLOOR, TTMC A BLOCK,
K.H ROAD, SHANTINAGAR, BENGALURU - 560 027.
5 . THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES,
ZONE - 3/RETURNING OFFICER,
TH RD
8 MAIN 3 FLOOR, MALLESHWARAM,
BENGALURU-560003.
6 . SRI THYAGARAJA CO-OPERATIVE BANK LIMITED,
A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE
KARNATAKA CO-OPERATIVE SOCIETIES ACT 1959,
TH
NO. 5, 9 CROSS,N.R COLONY, BENGALURU - 560019,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
…RESPONDENTS
(BY SRI SIDHARTH BABU RAO, AGA FOR R1, R2, R4 AND R5,
SRI T.L KIRAN KUMAR, ADVOCATE FOR R3,
SRI JAYKUMAR S PATIL, SENIOR COUNSEL A/W
SRI A MAHAMMED TAHIR, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO i) DIRECTING
THE R4 TO CONSIDER THE REPRESENTATION DT.26/10/2023 AND
TO PASS ORDERS THEREON, VIDE ANNEXURE-O. ii) DIRECTING
THE R6 FOR RE-DOING THE DRAFT VOTER LIST BY FOLLOWING THE
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DUE PROCEDURE AS PRESCRIBED UNDER RULE 13-D(2-A) OF THE
KARNATAKA CO-OPERATIVE SOCIETIES RULES, 1960 AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
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ORDERS ON 17 JANUARY, 2024 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
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1. The petitioners claim to be the members of the 6
respondent-bank (Hereinafter referred to as the ‘Bank’ for
short). The petitioners have prayed to direct the Bank to redo
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the draft voters' list. Further prayer is to direct the 4
respondent-election officer to hold elections to the Board of the
Bank after finalising the voters’ list by complying with the
requirements under Rule 13-D(2-A) of the Karnataka
Co-operative Societies Rules, 1960. (For short ‘Rules, 1960’).
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2. The other prayer to direct the 4 respondent to
consider petitioners’ representation to appoint an administrator
to the Bank does not survive as the administrator is already
appointed to the Bank.
3. This Court vide interim order dated 04.01.2024,
permitted the Returning Officer (subject to the result of the
petition) to publish the calendar of events for the election to
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the Board of the Bank. The calendar of events was published
on 04.01.2024. While reserving the matter for judgment on
17.01.2024, this Court has permitted voting to be held on
21.01.2024. However, counting of votes and the result are
withheld.
4. The petition is filed on the premise that the process
initiated by the Bank to prepare the eligible and ineligible
voters’ list for the election to the board of the Bank, is in total
derogation of Rule 13-D(2-A) of the Rules, 1960. The validity
of the voters’ list cannot be adjudicated in a dispute under
Section 70(2)(c) of the Karnataka Co-operative Societies Act,
1959 (For short 'Act, 1959') as the said dispute falls outside
the scope of Section 70 of the Act, 1959.
5. The respondents contend that petitioners have a
remedy under Section 70(2)(c) of the Act, 1959 to challenge
the voters’ list and writ petition is not maintainable.
6. The co-ordinate Bench of this Court in Mohammad
Beary & Others vs The State Of Karnataka & Others (Writ
Petition No.29271/2023 & Connected matters) relying on the
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judgment of the Apex Court in Shri Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak
1
Sanstha and Another vs State of Maharashtra & Others ,
has taken a view that the writ petition challenging ineligible
voters’ list after the publication of calendar of events is not
maintainable and the aggrieved party has to approach the
authority under Section 70 of the Act, 1959.
7. Another co–ordinate bench of this Court in H.S.
2
Raju and Others vs State of Karnataka and Others in a
slightly different context where exparte interim order was
granted permitting the petitioners to vote in the election, after
service of notice and on an admission made by the Society that
the Rule 13-D(2-A) of Rules, 1960 is not complied, permitted
counting of votes cast by the petitioners and kept open all
disputes to be decided under Section 70 of Act, 1959, if any
raised.
8. The petitioners urge that this petition is filed even
before the publication of the calendar of events whereas the
1
(2001) 8 SCC 509
2
2022 (4) AKR 775
7
judgments referred to supra are rendered where the petitions
are filed after publication of calendar of events. It is also urged
that the Apex Court in Election Commission of India
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through Secretary vs Ashok Kumar and Others has held
that the writ petition is maintainable if the same is filed to
ensure fair and smooth elections. On this premise, it is urged
that the judgment in Mohammad Beary and H.S. Raju
supra are per incurium.
9. In the light of the contentions raised, the following
questions arise for consideration;
(a) Whether a writ petition under Article 226 of the
Constitution of India is maintainable (before the publication of
the calendar of events under Rule 14) to redo the voters’ list
for violation of Rule 13-D(2-A) of the Rules, 1960, in preparing
the eligible and ineligible voters’ list?
(b) Whether the authority acting under Section 70(2)(c)
of the Act, 1959 can decide the validity of the electoral roll
vis-à-vis Rule 13-D(2-A) of Rules, 1960?
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(2000)8 SCC 216
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(c) Whether the judgments of co-ordinate Bench of this
Court in Mohammad Beary and H.S. Raju supra are per
incurium and contrary to the law in Election Commission of
India through Secretary supra.
Facts in brief:
10. The term of the board of the Bank ended on
27.10.2023. The Bank on 24.05.2023 requested the
Co-Operative Election Authority to make preparations to hold
the election to its board. On the same day, a list of members
who are eligible to vote, a list of defaulters, and a list of
ineligible voters were forwarded with a request to approve the
same and to enable further course of action in conducting the
election. On 24.08.2023, the Election Officer appointed the
Returning Officer to hold the election. The Election Officer fixed
15.10.2023 as the date of election.
11. The Election Officer has noticed certain
discrepancies in the voters’ list and directed the Bank to follow
the requirements under Rule 13-D(2-A) of the Rules, 1960
before finalising the voters’ list. The Bank claims that fresh
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notices were issued to the members of the Bank under Rule
13-D(2-A) of the Rules, 1960 inviting their objections to the
ineligible voters’ list, which claim is disputed by the petitioners.
It appears, around 21 members filed objections to the
ineligible voters’ list and the Election Officer claims to have
passed orders on the objections, and the final voters’ list is
prepared during the pendency of the petition.
12. The petition, as noticed above, is filed essentially on
the premise that Rule 13-D (2-A) of Rules, 1960 is mandatory
and the same is not followed while initiating the procedure for
preparing eligible and ineligible voters’ lists.
13. Learned Senior Counsel for the petitioners Sri. M.R.
Rajgopal, raised the following contentions:
(i) The provisions of the Act, 1959 and the Rules, 1960
applicable to elections to the board of a
Co-operative society are mandatory as held by the
Division Bench in MYSORE AND CHAMARAJANAGAR
DISTRICT CO-OPERATIVE BANK LTD. AND OTHERS
Vs STATE OF KARNATAKA AND OTHERS (W.A. No.
No.1333/2023). If said provisions are breached, then the
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petition under Article 226 of the Constitution of India is
the only remedy, and the election to the Board of the
Bank cannot be held unless the mandatory requirements
of Rule 13-D( 2-A) of the Rules, 1960 are complied.
(ii) Considering the definition of ‘Board’ in Act, 1959, and its
role as provided under Sections 28-A and 28-B, the
dispute relating to the electoral roll cannot be adjudicated
under Section 70 of the Act, 1959 as the same is beyond
the scope of Section 70(2)(c) of the Act, 1959.
(iii) Under proviso to Section 18(1) of Act, 1959, the number
of associate members cannot exceed more than 15% of
the number of regular members. Around 18,000 persons
are admitted as associate members whereas there are
around 16,500 regular members. Under Bye-law No.36.6
read with Sections 16 and 18, unless the associate
members are provided an option to be regular members,
the election to the board cannot be held.
(iv) In terms of the law in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK
LTD . supra, the election process commences only after
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publication of the calendar of events. Thus, the writ
petition filed before publication of the calendar of events
is maintainable.
(v) A writ petition is also maintainable if it is filed to ensure a
smooth and fair election in compliance with the applicable
provisions of law as held by the Apex Court.
Reliance is placed on the following judgments:-
1) Sri. Kumar M vs The State of Karnataka and others
(WP No.20333/2023).
2) Mysore and Chamarajanagar District Co-operative
Bank Ltd and others vs The State of Karnataka and
others (WP No.1333/2023).
3) Election Commissioner of India through Secretary vs
Ashok Kumar and others, (2000) 8 SCC 216. (para
32)
4) Lakshmi Charan Sen and Others vs A.K.M. Hassan
Uzzaman and others, (1985) 4 SCC 689.
5) T.S. Patil vs The J.R.C.S. and others, ILR 2007 KAR
491.
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14. The learned senior counsel Sri. Jaykumar S. Patil
appearing for the contesting respondent No.6 raised the
following contentions:
(i) The Bank vide letter dated 24.05.2023 requested the
Co-Operative Election Authority to make preparations to
hold an election to its board. The Election Officer after
considering the steps taken by the Bank in preparing the
eligible and ineligible voters’ list and noticing some
discrepancies suggested a course correction.
Consequently, remedial measures are taken to redo the
voters’ list. Thus, there cannot be any objection to
eligible and ineligible voters’ lists.
(ii) Preparation of the electoral roll is an integral part of the
election under the Scheme of Act, 1959 and Rules, 1960
as such the petition under Article 226 of the Constitution
of India is not maintainable to seek a direction to redo
the voters’ list. If the petitioners are aggrieved by the
election results on account of a ‘faulty voters’ list’, then
recourse is under Section 70 (2) (c) of the Act, 1959.
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15. In support of his contention reliance is placed on the
following judgments:
(i) Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha and
Another v. State of Maharashtra and Others
(2001)8 SCC 509
(ii) H. S. Raju and others vs State of Karnataka and
Others 2022(4) AKR 775
16. Learned Government Advocate Sri.Siddarth Baburao
submitted that even if Rule 13-D(2-A) is held to be mandatory,
the petitioners have a statutory remedy under Section 70 of
the Act, 1959.
17. Learned counsel for the Co-Operative Election
Authority Sri.T.L.Kiran Kumar urged that noticing non-
compliance with Rule 13-D (2-A), the election scheduled on
15.10.2023 earlier, was postponed to 21.01.2024 and in the
interregnum, the Bank and the Election Authority have taken
corrective measures, and voters’ list is finalised by following
the procedure.
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18. To answer the questions raised, the Court has to
analyse the role of the Co-Operative Election Authority, the
right to vote, grounds for disqualification to vote, the
mechanism provided for conducting elections under the Act
and Rules, and the remedy provided under the Act and Rules
for breach of the provisions governing election to the board of
a co-operative Society.
19. As provided in Sections 28-A and 28-B, the Board of
a co-operative Society is to be constituted by holding an
election. The Act, 1959 and the Rules, 1960 provide for a
periodic election and a mechanism for conducting the election
to the Board of a co-operative Society.
20. At this juncture, it is relevant to refer to Section
39-A of Act, 1959 and Rule 13-C and the relevant portion of
Rule 13-D of Rules, 1960 dealing with elections.
Relevant portion of Section 39-A reads as under:
Conduct of election.- (1) Every general election of the
members of the board and election of the office-bearers
of a co-operative society including any casual vacancy
to the extent applicable shall be held under the
Superintendence of Co-operative Election
Authority.
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(2) The general elections of the members of the
boards of the co-operative societies shall be held in four
stages as under:
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
Provided that the (Co-operative Election
Authority) may start the preparatory work for
the preparation of the electoral rolls for and the
conduct of the elections during the last six
months prior to the expiry of the term of office
of the board of a co-operative society”.
(Emphasis supplied)
21. Rule 13-C of Rules, 1960 which also corresponds to
the power conferred under Section39-A of the Act reads as
under:
13-C. Conduct of general elections to the board.-
(1) The Government may advise the Election Authority
on the suitability of dates for conducting elections as
per sub-section (2) of Section 39-A of the Act for
administrative reasons to be recorded in writing.
(2) Subject to the general superintendence and
directions of the Co-operative Election Authority,
the Chief Executive of the society shall prepare the
electoral roll for election to the co-operative society.
The list so prepared by the Chief Executive shall
be verified and approved by the Election Officer.
(emphasis supplied)
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The relevant portion of Rule 13-D reads as under:
13-D. Preparation of electoral rolls and
calendar of events.-
(1) The Election Officer shall , after due
verification, send a consolidated list of all
co-operative societies in the district where
elections are due at least 120 days before
the date of expiry of the term of office of
the boards to the Co-operative Election
(Authority) indicating therein the following
particulars.-
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx.
(2) The Co-operative Election authority
shall, on receipt of such reports from the
(Election Officer), containing the list of
cooperative societies where elections are
due, publish the calendar of events for the
preparation of electoral rolls and the conduct
of elections of the boards of the co-operative
societies indicating the name and address of
each society
(2-A) The election officer shall take
steps for publication of voter list who
are not eligible to vote in the following
manner, namely -
(i) xxxx.
(ii) xxxx.
(iii) xxxx.
(iv) xxxx.
(v) the election officer has to hear and
dispose the objections filed by the
ineligible voters within sixty days
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from the days of submission of
objections from such voters
(vi) Xxxx
(3) The Election Officer shall take steps for
publication of voters list in the
following manner namely,-
(a)xxxx
(b)xxxx
(c) xxxx
(d)xxxx
(4) It shall be the duty of every society to
furnish correct information required by
the Election Officer to enable him to
approve the electoral rolls as directed
by the Co-operative Election Authority.
(Emphasis supplied)
22. On a cursory reading of the above-mentioned
provisions, it is evident that the role of the Co-Operative
Election Authority under the scheme of the Act, 1959 and the
Rules 1960, in conducting the election to the board of a
co-operative society is all-pervasive. Right from the stage of
preparing the eligible and ineligible voters’ list till the
announcement of results, the Co-Operative Election Authority
has a predominant role to play in not only conducting the
elections to the board of a co-operative society but also in
finalising the electoral roll with reference to right to vote and
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disqualification to vote. This aspect is to be kept in mind while
answering the questions raised in the petition.
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23. The 97 Constitution Amendment which amended
Article 19(1)(c) and brought ‘co-operative society’ within the
ambit of Article 19(1)(c) is struck down by the Apex Court in
so far as it applies to the co-operative societies other than
multi-state co-operative societies in The Union of India vs
4
Rajendra N Shah . Even if the right to form an association
which is a fundamental right under Article 19(1)(c), is applied
to co-operative societies, such a fundamental right to form a
co-operative society does not elevate the ‘right to vote’ in a
co-operative society to the status of a fundamental right.
24. Section 20 of the said Act, 1959 in addition to
classifying different categories of members eligible to vote,
also deals with the disqualification to vote. Section 20(a-iv)
and (a-v) of the Act, 1959, are relevant for discussion.
25. Under Section 20(a-iv), the member who fails to
attend three of the last five general body meetings incurs
4
(2021) SCC ONLINE SC 474
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disqualification to vote. Under Section 20(a-iv), the member
incurs disqualification for not utilising the minimum services or
facilities prescribed under the bye-law, for two co-operative
years out of the last five co-operative years. In other words
under the Act and Rules, the right to vote in an election to the
board of a society is not automatic but is to be earned by
fulfilling certain conditions and not fulfilling those conditions
results in disqualification to vote. If disqualification is disputed,
then the Election Officer has to decide the dispute in the first
instance.
26. Having considered the predominant role of the
Co-Operative Election Authority right from the stage of
preparing the electoral roll, finalising the same after hearing
the objections, publication of calendar of events and
conducting the elections, and having considered the nature of
the vote of member in a co-operative society, before
proceeding to answer the question whether there can be a
challenge to the electoral roll in a petition under Article 226 of
the Constitution of India, before the publication of the calendar
of events on the premise that the said roll is published in
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violation of Rule 13-D(2-A), the Court has to consider if any,
statutory remedy is available to question the violation of
provisions of the Act, 1959 and the Rules, 1960 in preparing
the eligible and ineligible voters’ list.
27. Section 70 of the Act, 1959 provides for resolution
of dispute in connection with matters covered under the
provision. Relevant portion of Section 70(1) and (2) of the Act,
1959 reads as under:
Section 70 . Disputes may be referred to the Registrar
for decision.-
(1) Notwithstanding anything contained in any law for
the time being in force, if any dispute touching the
constitution, management, or the business of a
cooperative society arises.-
(a)xxxx
(b)between a member, past member, or person
claiming through a member, past member, or deceased
member and the society, its (board) or any officer, agent,
or employee of the society, or
(c)xxxx
(d)xxxx
Xxx
Section: 70(2) For the purpose of sub-section (1), the
following shall be deemed to be disputes touching the
constitution, management, or the business of a
co-operative society, namely.-
(a) xxxx
(b) xxxx
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(c) any dispute arising in connection with the election of
a President, Vice-President, or any office-bearer or
Member of the board of the Society;
(d) XxXxxx
(e) xxxx
(Emphasis supplied)
28. The plain grammatical meaning of the expression
“ any dispute arising in connection with the election” itself
makes abundantly clear that the Authority under Section
70(2)(c) of the Act, 1959 can decide any dispute in connection
with the election of the members of the board of a co-operative
society. In addition, as can be noticed from Section 70(2)(c),
unlike the provisions in the enactments like The Karnataka
Municipalities Act, 1964, Karnataka Gram Swaraj and
Panchayat Raj Act, 1993, and even the Representation of
People Act, 1951, which provide for election dispute on specific
grounds enumerated in the provision, in Section 70(2)(c), the
challenge to the election to the Board of a co-operative society
is not restricted to certain specific grounds. Thus, there can be
no room for any doubt whatsoever that the Section 70(2)(c) of
Act, 1959 is wide enough to cover all questions in connection
with Section 20 (a-iv) (a-v) and Rule 13-D (2-A) referred to
above.
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29. However, a word of caution is needed here. The
right to vote and the disqualification to vote in the election to
the board of the co-operative society is not just dependent on
the procedure to be followed under Rule 13-D(2-A) of the
Rules. The right to vote or ineligibility to vote depends on the
members meeting, the eligibility criteria prescribed under
Section 20(a-iv) and (a-v). Non-compliance with the
mandatory procedures prescribed under Rule 13-D(2-A) for
preparation of voters’ list ipso facto will not make the ineligible
voter, eligible to vote. Eligibility to vote is also required to be
demonstrated. It is quite possible that even if Rule 13-D(2-A)
is not followed, the list may conform to Section 20 (a-iv) and
(a-v) of the Act, 1959. Thus, apart from demonstrating that
the Rule 13-D is not complied,the member has to demonstrate
that he is eligible to vote but should also demonstrate that the
faulty voters’ list made an impact on the election results.
30. It is also relevant to note that non-compliance of
some part of Rule 13-D(2-A), may close the window provided
to repay the dues within the time fixed under Rule 13-D(2-A).
It will take away the opportunity to be an eligible voter or an
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opportunity to contest. Losing a chance to contest an election if
the nomination paper is rejected on the premise that the
candidate’s name is not in the electoral roll can also be
questioned under Section 70 of the Act, 1959.
31. Learned Senior Counsel for the petitioners referring
to the judgment in T.S. Patil supra , and also the language
employed in Section 70(2)(c) of the Act, 1959, urged that the
person aggrieved by the election results can challenge the
election only on the grounds available under the
Representation of People Act, 1951 (hereinafter referred to as
the ‘Act of 1951’ for short). Referring to Sections 100 and 101
of the said Act, it is urged that challenge to the election on the
ground that the electoral roll was not prepared by following the
mandatory rules is not recognised. It is further urged that
Section 70(2)(c) also does not recognize the challenge to the
election on the grounds of violation of rules prescribed for the
preparation of the electoral roll.
32. In the case of T.S.PATIL supra , the Court was
examining whether the authority under Section 70 of Act, 1959
24
deciding election dispute can declare the petitioner as an
elected candidate by setting aside the election of a returned
candidate as Section 70(2)(c) is silent on this aspect. This
Court following the judgment of CHANNE GOWDA AND
5
ANOTHER VS. STATE OF KARNATAKA AND OTHERS which
in turn followed the judgment of the Division Bench in
HAYAT
6
BEIG VS. MUNIVENKATE GOWDA AND OTHERS has taken
a view that even in respect of the matters for which no specific
provision is made in Section 70, the general principles of
Sections 100 and 101 of the Act of 1951 and the law laid down
under the said provisions can be applied and in deserving
cases, the Authority is competent to pass an order declaring
the petitioner as elected apart from setting-aside the election
of a returned candidate. Now it is necessary to consider the
relevant portion of Section 100 of the Act of 1951 which reads
as under.
100. Grounds for declaring election to be void.-
(1)xxxx
(a)xxxx
(b)xxxx
(c)xxxx
5
1975 (2) Kar.L.J. 235
6
(1972) 1 Mys.L.J. 121
25
(d)that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) to (iii) xx
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules or
orders made under this Act, shall declare the
election of the returned candidate to be void.
(Emphasis supplied)
33. Admittedly, Section 70(2)(c) does not specify the
grounds on which an election to the board of a co-operative
society can be set aside. Assuming that there is a vacuum as to
what kind of relief can be granted under Section 70(2)(c),
applying the principles contained in Section 100(1)(d-iv) of Act
of 1951, and following the ratio in T.S.PATIL and CHANNE
GOWDA and HAYAT BEIG supra, the non-compliance of Rule
13-D(2-A) of Rules, 1960 can be read as a ground available
under Section 70(2)(c) of Act, 1959 to challenge the election to
the board of a co-operative society. Thus, the Authority under
Section 70 of the Act, 1959 can also look into the violation of
the provisions of the Act, 1959 and Rules, 1960, applicable to
the election to the board of a co-operative society. If, it is
established that the electoral roll is prepared in violation of the
mandatory rules and that the result of the election is affected
26
on account of faulty electoral roll, then, the Authority under the
Act is competent to pass an appropriate order on the election
by assessing the impact of faulty electoral roll on the outcome
of the election. This being the position, this Court is of the view
that the judgment rendered in T S PATIL supra does not come
to the aid of the petitioners. On the other hand, the principle
laid down in the said judgment will enable the Authority under
Section 70 to examine the violation of Rule 13-D(2-A) of Rules,
1960 as well.
34. Referring to Rules 13-D, Rule 14, and Form-XI and
XII under Rule 14, it is urged that two different calendar of
events i.e., one about the preparation of electoral rolls, and
another about the conduct of election to the Board of
Co-operative Society, are contemplated under the said rule.
Thus, the preparation of the electoral roll is not an intermediate
stage and part of the election process is the submission on
behalf of the petitioners.
35. Learned Senior Counsel Sri. M.R. Rajgopal placed
heavy reliance on the judgment of the Division Bench in
MYSORE AND CHAMARAJANAGAR DISTRICT
27
CO-OPERATIVE BANK LTD supra to urge that the election
process commences from the date of publication of the
calendar of events under Form-XII. Since the preparation of
the electoral roll is not an integral part of the election process,
then the writ petition filed challenging the procedure initiated
or adopted to prepare the electoral roll can be entertained as
calendar of events was not published when the petition was
filed.
36. The question decided in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK LTD
supra is “whether the authority under the Rule, 1960 has the
power to recall the notification issued under Rule 14(1)
Form-XI of Rules, 1960?” by holding that the procedures
contemplated under Rule 13-D(2-A) are mandatory, the
Division Bench held that Notice under Form-XI can be
withdrawn by the Election Authority if the procedure
contemplated under Rule 13-D is not complied with.
37. In the aforementioned judgment, the Division Bench
did not decide the question, “whether a writ petition can be
filed under Article 226 of the Constitution of India to question
28
the eligible and ineligible voters' list on the premise that the
requirement of Rule 13-D(2-A) is not followed?” Though, in the
said judgment in paragraph(e), the Division Bench has taken a
view that publication of notice under Form-XI cannot be
construed as the commencement of the election process and
the election process commences only after the publication of
notice under Form-XII, the said observation of the Division
Bench cannot be read to mean that as long as election process
has not commenced, the writ petition is maintainable to
challenge the electoral roll.
38. It is a well-settled principle of law that the judgment
cannot be read like a statute, and has to be read in the context
in which it is rendered. A judgment is an authority only on the
matter which is decided by it, and not necessarily on what all
logically flows from in interpreting the judgment.
39. The findings or observation on a question namely,
whether the election process commences from the date of
publication of notice under Form-XI or under Form-XII, in the
context of the dispute where the Court was deciding a question
29
whether the Election Authority can recall the notice under
Form-XI cannot be used to answer the questions;
(a) Whether the preparation of the electoral roll is an
intermediate stage and part of the election process,
(b) Whether a writ petition would lie to challenge the
electoral roll.
Thus, the judgment in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK LTD
supra is not an answer to aforementioned questions.
40. Whether the preparation of the electoral roll is part
of an election is the question answered by the Apex Court in
Shri Sant Janardan supra . The Apex Court has analyzed the
scheme of the Maharashtra Co-operative Societies Rules
concerning the preparation of the electoral roll and the process
of filing objections to the ineligible voter's list. The Apex Court
has taken the view that the preparation of the electoral roll is
also an intermediate stage in the election. Paragraph No.7 of
the said judgment is relevant as extracted below:
30
"7. In the light of the aforestated provisions of Chapter XI-A of
the Act and the Rules, we will examine as to whether the
preparation of electoral rolls is an intermediate stage in the
process of election. The provisions referred to above show that
Chapter XI-A was enacted and the Rules were framed specially
to deal with the election of the specified societies under Section
73-G of the Act. Section 144-X provides that various stages of
the election shall also include the preparation of the list of
voters. Once the statute provides that the preparation of the
voters' list shall be part of the election process, there is no
reason to hold that the preparation of the electoral roll is not an
intermediate stage in the process of the election of a specified
society. This matter can be examined from another angle. A
perusal of the Rules discloses that the preparation of provisional
list of voters, filing of objection against the provisional list of
voters, consideration of the objection by the Collector, and
finalizing the list of voters, all occur in the Rules which cover the
entire process of the election. The Rules framed for the election
of specified societies are a complete code in itself providing for
the entire process of election beginning from the stage of
preparation of the provisional voters' list, decision on the
objection by the Collector, finalization of electoral rolls, holding
of election and declaration of result of the election. In view of
the scheme of the Act and the Rules, the preparation of voters'
list must be held to be part of the election process for
constituting the Managing Committee of a specified society.
In Someshwar Sahakari Sakhar Karkhana Ltd. v. Shriniwas Patil,
Collector [(1992) 1 Mah LJ 883] it was held that in the scheme
of the provisions of the Act and the Rules, the preparation of the
list of voters for election to the Managing Committee of a
specified society is an intermediate stage in the process of the
election. Similar view was taken in Shivnarayan Amarchand
Paliwal v. Vasantrao Vithalrao Gurjar [(1992) 2 Mah LJ 1052].
However, in v.
Karbhari Maruti Agawan State of
Maharashtra [(1994) 2 Mah LJ 1527] although it was held that
the preparation of the list of voters is an intermediate stage in
the process of election, but that does not debar the High Court
from entertaining a petition under Article 226 of the Constitution
challenging the validity of the electoral roll. It appears that the
consistent view of the Bombay High Court on the interpretation
of Chapter XI-A of the Act and the Rules framed thereunder is
that the preparation of the electoral roll is an intermediate stage
of the election process of the specified societies. This being the
consistent view of the High Court on the interpretation of
provisions of a State Act, the same is not required to be
disturbed unless it is shown that such a view of the High Court is
palpably wrong or ceased to be good law in view of amendment
31
in the Act or any subsequent declaration of law. We are,
therefore, of the view that the preparation of the electoral roll
for the election of the specified society under Chapter XI-A and
the Rules framed thereunder, is an intermediate stage in the
process of election for constituting the Managing Committee of a
specified society".
(Emphasis supplied)
41. The provisions of the Rules, 1960, in so far as the
conduct of elections are complete code in itself. The said
judgment is indeed rendered interpreting the provisions of the
Maharashtra Co-Operative Societies Act and Rules. It is also
true that the procedures under the said Act and Rules in
preparing the electoral roll are different from the one provided
in the Act, 1959 and Rules, 1960. However, the fact that both
enactments provide an adjudicatory mechanism before
finalizing the final electoral roll and also the fact that an
independent authority other than the co-operative society is
assigned with the role of preparing the electoral rolls and
conducting elections , the underlying philosophy in both Rules
in so far as conducting elections to the board of a co-operative
society is by and large the same.
42. Though, the provisions of the Maharashtra Act
specifically provide for challenging the election on the ground
32
of non-compliance with the provisions of the Act and Rules,
and though the Act, 1959, does not specifically provide as to
on what grounds the election to the board of a co-operative
society can be set aside, for the reasons already supra, the
challenge to an electoral roll is very much permissible under
Section 70 of the Act, 1959, (subject to aggrieved party
establishing that such errors impacted the outcome of the
elections) as preparation of electoral roll is part of election
process, in the context of questions raised in the petition.
43. This being the position, the contentions raised by
the petitioners that two different calendar of events are
envisaged under Rules, 1960 and the writ petition to challenge
the electoral roll is maintainable if the writ petition is filed
before publication of calendar of events, cannot be accepted.
44. In the light of the reasons recorded above, this
Court is of the view that as a general principle, the writ petition
to challenge the electoral roll published for holding elections to
the board of a co-operative society is not maintainable.
However, this Court is not holding that the remedy under
Article 226 of the Constitution of India is completely ruled out.
33
There may be situations, in the facts and circumstances of a
given case, the High Court in the exercise of plenary
jurisdiction under Article 226 of the Constitution of India may
have to step into avert a total miscarriage of justice in
preparing the electoral roll. It is not desirable to spell out those
circumstances in this petition. Suffice it to say that the facts
obtained in this petition do not warrant such exercise.
45. As far as the contention that the inaction on the
part of the Bank in not following the mandate of Section 16
and Bye-law No.36.6 to reclassify the associate members to
regular members is concerned, this Court is of the view that
none of the associate members has come forward claiming the
right to vote by becoming a regular member. The associate
members under Section 20 of Act, 1959 have no right to vote.
Hence, the petitioners cannot take it as a ground to challenge
the electoral roll. If there is any lapse on the part of the Bank
in not complying with the requirement of Section 16 and Bye-
law No.36.6, the petitioners have to approach the Authority
under the Act for appropriate remedy. Inaction to remove
associate members or to change their status from associate
34
members to some other category of members cannot be a
ground to urge that the electoral roll be redone either by
removing or changing the status of associate members to
some other category of members.
46. As of now, as the law stands associate members do
not have the right to vote. Hence, those associate members
continuing in the same status though contrary to the provisions
of Sections 16 and 20 of Act, 1959 is not a ground to invoke
Article 226 of the Constitution of India with a prayer to redo
the voters’ list.
47. The petitioners have placed reliance on the
judgment of the Hon’ble Apex Court in ASHOK KUMAR’s case
. Referring to paragraph No.32 of the judgment, it is
supra
urged that any step taken by filing a petition should not be
construed as a petition calling an election if the step taken sub-
serves the progress of the election and facilitates the
completion of the election. It is also urged that the decisions
taken by the election commission are open to the judicial
review on the well-settled parameters which enable judicial
review of decisions on statutory bodies such as on a case of
35
malafide or arbitrary exercise of power being made out or
statutory body being shown to have acted in breach of law. In
this petition, no case is made out to hold that the process has
suffered on account of malafides and arbitrary exercise of
power. Intervention in the election process in the facts and
circumstances presented before this Court certainly does not
enable the smooth progress of the election. Moreover, as
already held, the statutory remedy is available to the
petitioners to challenge the electoral roll.
48. Reliance is also placed on Lakshmi Charan Sen
supra and it is urged that the preparation of the election roll
and publication of the electoral roll are not part of the election
process. It is relevant to note that in the said case, the Apex
Court has not decided the question whether the expression
‘election’ in Article 329(b) of the Constitution includes the
process of preparation of electoral roll. In this petition, the
preparation of electoral roll under the Rules, 1960 is examined.
Placing reliance on Shri Sant Janardan supra which is
decided in the context of the rules governing election to a
co-operative society, the co-ordinate Bench of this Court in
36
Mohammad Beary supra has taken a view that the dispute in
connection with the election includes preparation of electoral
rolls. Even in H.S. RAJU supra, the co-ordinate Bench of this
Court by following the law in Shri Sant Janardan supra, and
the peculiar facts of the said case has taken a view that the
dispute relating to election to the board of a co-operative
society is to be resolved under Section 70. The contention that
judgments in Mohammad Beary and H.S. Raju supra are per
incurium is not accepted.
49. It is relevant to note that under the scheme of the
Act, 1959, the elections to the co-operative societies are to be
held in phases. Section 39-A of the Act, 1959 provides for four
stages for holding the election to the different categories of
co-operative societies viz., a primary co-operative society, a
secondary co-operative society, a federal co-operative society,
and an Apex co-operative society. Because election to one
category of co-operative society is dependent on another
category of co-operative society and if, election to one category
of society is stalled; it may have a cascading effect and may
also affect the elections of the next categories of co-operative
37
societies. This is one of the peculiar features of elections to
co-operative societies distinct from elections to local bodies,
legislative assemblies, or even the parliament.
50. For the reasons recorded, this Court concludes as
under:
(a) The preparation of electoral roll under Rule, 13-D(2-
A) of the Karnataka Co-Operative Rules 1960 is an
integral part of the election process in the context of
a question whether the writ petition is maintainable
when the challenge is laid to the procedure initiated
for preparing electoral roll.
(b) In a dispute under Section 70(2)(c) of the
Karnataka Co-operative Societies Act, 1959, the
Authority under Section 70 can decide the question
on the validity of electoral roll prepared under the
Rules, 1960 and its impact on the election.
(c) The judgments in MOHAMMAD BEARY and H.S.
RAJU are not per incurium
(d) The writ petition under Article 226 of Constitution of
India to challenge the electoral roll on the ground of
38
non compliance of Rule 13-D(2-A) of Rules, may lie
in exceptional cases.
51. Based on the conclusions arrived at in the facts and
circumstances of the case, this Court is of the view that no
exceptional case is made out in this petition to exercise Article
226 jurisdiction. This Court has not expressed any opinion on
the eligible and ineligible voters’ list prepared during the
pendency of the petition. Hence, the following:
ORDER
Writ petition is disposed of on the following terms:
(i) The returning officer shall count the votes cast in the
th
election held on 21.01.2024, to the Board of the 6
respondent bank, and shall announce the results.
(ii) The liberty is reserved to the petitioners or any aggrieved
person to raise objections to the validity of the electoral roll
in an election petition under Section 70(2)(c) of the
Karnataka Co-operative Societies Act, 1959.
(iii) If such a dispute is raised, the Authority under Section 70
of the Karnataka Co-operative Societies Act, 1959, shall
examine all questions including the question relating to
39
validity of the eligible and ineligible voters’ list and impact
th
on the election to the Board of the 6 respondent – Bank.
(iv) Nothing is expressed on the merits of the eligible and
ineligible voters' list published during the pendency of
the petition and said question kept open to be decided
in the dispute under Section 70 of the Karnataka Co-
operative Societies Act, 1959, if raised.
SD/-
JUDGE
BRN/CHS
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 24 DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 29014 OF 2023 (CS-EL/M)
BETWEEN:
1 . SRI. B GANGANNA,
S/O BORAIAH,AGED ABOUT 60 YEARS,
RESIDENT OF OLD NO. 1072,
NEW NO. 01, LAKSHMI NIVAS,
TH
15 MAIN ROAD, SRINAGAR,
BENGALURU - 560 050.
2 . SRI HY.B JAYARAMA,
S/O N BORAIAH,AGED ABOUT 68 YEARS,
RESIDENT OF NO. 1519/2,
TH ST
10 CROSS, B.S.K 1 STAGE,
ND
2 BLOCK, ASHOK NAGAR,
BENGALURU - 560 050.
3 . SMT S ASHA,
C/O GANGADHARAMURTHY M.S,
AGED ABOUT 50 YEARS,
RESIDENT NO.1728
TH TH
4 H BLOCK, B.S.K 6 STAGE,
FURTHER EXTENSION,
VRUSHABHAVATHI NAGAR, VTC,
THALAGHATTAPURA,
BENGALURU - 560 062.
4 . SRI GANGADHARAMURTHY M S,
S/O M SHANKARACHAR,
AGED ABOUT 63 YEARS,
RESIDENT NO. 1728
TH TH
4 H BLOCK, B.S.K 6 STAGE,
FURTHER EXTENSION,
VRUSHABHAVATHI NAGAR, VTC,
2
THALAGHATTAPURA, BENGALURU - 560 062.
5 . SMT H V SATHYA SHREE,
W/O T.G UMESH,
AGED ABOUT 47 YEARS,
RESIDENT OF NO. 13/A,
SHAKUGOVINDA NIVASA,
TH TH
6 MAIN 8 D CROSS,
JNANAJYOTHINAGAR, MALLATHAHALLI,
BENGALURU - 560056.
6 . SRI GANGADHARA
S/O CHIKKABOREGOWDA,
AGED ABOUT 60 YEARS,
RESIDENT OF NO.84
ST TH
1 MAIN ROAD, 5 CROSS,
ITTAMADU EXTENSION,
RD
BSK 3 STAGE,BENGALURU - 560 085.
7 . SMT K N PADMAVATHI,
W/O A S SWAMY, AGED ABOUT 35 YEARS,
ABBUR VILLAGE,
ABBUR POST, CHANNAPATNA TALUK,
ABBUR, RAMANAGARA,
RAMANAGARA - 562108.
8 . SRI A S CHANDRASHEKARA,
S/O SHAMBHU GOWDA,
AGED ABOUT 55 YEARS,
RESIDENT OF NO. 457,
TH
15 D CROSS, WOC ROAD,
ND ND
2 STAGE, 2 PHASE,
MAHALAKSHMIPURAM,
BENGALURU - 560 086.
...PETITIONERS
(BY SRI M R RAJAGOPAL, SR. COUNSEL A/W
SRI A C BALARAJ, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA,
REPRESENTED BY ITS
3
SECRETARY TO GOVERNMENT,
DEPARTMENT OF CO OPERATION,
M.S BUILDING, DR. B.R AMBEKDAR VEEDHI,
BENGALURU - 560 001.
2 . THE REGISTRAR OF CO-OPERATIVE
SOCIETIES, NO.1 ALI ASKAR ROAD,
BENGALURU - 560 052.
3 . THE STATE CO-OPERATIVE ELECTION AUTHORITY,
RD
3 FLOOR, TTMC A BLOCK,
SHANTHINAGAR BUS STAND,
DOUBLE ROAD, BENGALURU-560027,
REPRESENTED BY ITS SECRETARY.
4 . THE REGISTRAR OF CO-OPERATIVE SOCIETIES AND
ELECTION OFFICER,
STATE CO-OPERATIVE ELECTION AUTHORITY,
RD
3 FLOOR, TTMC A BLOCK,
K.H ROAD, SHANTINAGAR, BENGALURU - 560 027.
5 . THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES,
ZONE - 3/RETURNING OFFICER,
TH RD
8 MAIN 3 FLOOR, MALLESHWARAM,
BENGALURU-560003.
6 . SRI THYAGARAJA CO-OPERATIVE BANK LIMITED,
A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE
KARNATAKA CO-OPERATIVE SOCIETIES ACT 1959,
TH
NO. 5, 9 CROSS,N.R COLONY, BENGALURU - 560019,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
…RESPONDENTS
(BY SRI SIDHARTH BABU RAO, AGA FOR R1, R2, R4 AND R5,
SRI T.L KIRAN KUMAR, ADVOCATE FOR R3,
SRI JAYKUMAR S PATIL, SENIOR COUNSEL A/W
SRI A MAHAMMED TAHIR, ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO i) DIRECTING
THE R4 TO CONSIDER THE REPRESENTATION DT.26/10/2023 AND
TO PASS ORDERS THEREON, VIDE ANNEXURE-O. ii) DIRECTING
THE R6 FOR RE-DOING THE DRAFT VOTER LIST BY FOLLOWING THE
4
DUE PROCEDURE AS PRESCRIBED UNDER RULE 13-D(2-A) OF THE
KARNATAKA CO-OPERATIVE SOCIETIES RULES, 1960 AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
TH
ORDERS ON 17 JANUARY, 2024 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
th
1. The petitioners claim to be the members of the 6
respondent-bank (Hereinafter referred to as the ‘Bank’ for
short). The petitioners have prayed to direct the Bank to redo
th
the draft voters' list. Further prayer is to direct the 4
respondent-election officer to hold elections to the Board of the
Bank after finalising the voters’ list by complying with the
requirements under Rule 13-D(2-A) of the Karnataka
Co-operative Societies Rules, 1960. (For short ‘Rules, 1960’).
th
2. The other prayer to direct the 4 respondent to
consider petitioners’ representation to appoint an administrator
to the Bank does not survive as the administrator is already
appointed to the Bank.
3. This Court vide interim order dated 04.01.2024,
permitted the Returning Officer (subject to the result of the
petition) to publish the calendar of events for the election to
5
the Board of the Bank. The calendar of events was published
on 04.01.2024. While reserving the matter for judgment on
17.01.2024, this Court has permitted voting to be held on
21.01.2024. However, counting of votes and the result are
withheld.
4. The petition is filed on the premise that the process
initiated by the Bank to prepare the eligible and ineligible
voters’ list for the election to the board of the Bank, is in total
derogation of Rule 13-D(2-A) of the Rules, 1960. The validity
of the voters’ list cannot be adjudicated in a dispute under
Section 70(2)(c) of the Karnataka Co-operative Societies Act,
1959 (For short 'Act, 1959') as the said dispute falls outside
the scope of Section 70 of the Act, 1959.
5. The respondents contend that petitioners have a
remedy under Section 70(2)(c) of the Act, 1959 to challenge
the voters’ list and writ petition is not maintainable.
6. The co-ordinate Bench of this Court in Mohammad
Beary & Others vs The State Of Karnataka & Others (Writ
Petition No.29271/2023 & Connected matters) relying on the
6
judgment of the Apex Court in Shri Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak
1
Sanstha and Another vs State of Maharashtra & Others ,
has taken a view that the writ petition challenging ineligible
voters’ list after the publication of calendar of events is not
maintainable and the aggrieved party has to approach the
authority under Section 70 of the Act, 1959.
7. Another co–ordinate bench of this Court in H.S.
2
Raju and Others vs State of Karnataka and Others in a
slightly different context where exparte interim order was
granted permitting the petitioners to vote in the election, after
service of notice and on an admission made by the Society that
the Rule 13-D(2-A) of Rules, 1960 is not complied, permitted
counting of votes cast by the petitioners and kept open all
disputes to be decided under Section 70 of Act, 1959, if any
raised.
8. The petitioners urge that this petition is filed even
before the publication of the calendar of events whereas the
1
(2001) 8 SCC 509
2
2022 (4) AKR 775
7
judgments referred to supra are rendered where the petitions
are filed after publication of calendar of events. It is also urged
that the Apex Court in Election Commission of India
3
through Secretary vs Ashok Kumar and Others has held
that the writ petition is maintainable if the same is filed to
ensure fair and smooth elections. On this premise, it is urged
that the judgment in Mohammad Beary and H.S. Raju
supra are per incurium.
9. In the light of the contentions raised, the following
questions arise for consideration;
(a) Whether a writ petition under Article 226 of the
Constitution of India is maintainable (before the publication of
the calendar of events under Rule 14) to redo the voters’ list
for violation of Rule 13-D(2-A) of the Rules, 1960, in preparing
the eligible and ineligible voters’ list?
(b) Whether the authority acting under Section 70(2)(c)
of the Act, 1959 can decide the validity of the electoral roll
vis-à-vis Rule 13-D(2-A) of Rules, 1960?
3
(2000)8 SCC 216
8
(c) Whether the judgments of co-ordinate Bench of this
Court in Mohammad Beary and H.S. Raju supra are per
incurium and contrary to the law in Election Commission of
India through Secretary supra.
Facts in brief:
10. The term of the board of the Bank ended on
27.10.2023. The Bank on 24.05.2023 requested the
Co-Operative Election Authority to make preparations to hold
the election to its board. On the same day, a list of members
who are eligible to vote, a list of defaulters, and a list of
ineligible voters were forwarded with a request to approve the
same and to enable further course of action in conducting the
election. On 24.08.2023, the Election Officer appointed the
Returning Officer to hold the election. The Election Officer fixed
15.10.2023 as the date of election.
11. The Election Officer has noticed certain
discrepancies in the voters’ list and directed the Bank to follow
the requirements under Rule 13-D(2-A) of the Rules, 1960
before finalising the voters’ list. The Bank claims that fresh
9
notices were issued to the members of the Bank under Rule
13-D(2-A) of the Rules, 1960 inviting their objections to the
ineligible voters’ list, which claim is disputed by the petitioners.
It appears, around 21 members filed objections to the
ineligible voters’ list and the Election Officer claims to have
passed orders on the objections, and the final voters’ list is
prepared during the pendency of the petition.
12. The petition, as noticed above, is filed essentially on
the premise that Rule 13-D (2-A) of Rules, 1960 is mandatory
and the same is not followed while initiating the procedure for
preparing eligible and ineligible voters’ lists.
13. Learned Senior Counsel for the petitioners Sri. M.R.
Rajgopal, raised the following contentions:
(i) The provisions of the Act, 1959 and the Rules, 1960
applicable to elections to the board of a
Co-operative society are mandatory as held by the
Division Bench in MYSORE AND CHAMARAJANAGAR
DISTRICT CO-OPERATIVE BANK LTD. AND OTHERS
Vs STATE OF KARNATAKA AND OTHERS (W.A. No.
No.1333/2023). If said provisions are breached, then the
10
petition under Article 226 of the Constitution of India is
the only remedy, and the election to the Board of the
Bank cannot be held unless the mandatory requirements
of Rule 13-D( 2-A) of the Rules, 1960 are complied.
(ii) Considering the definition of ‘Board’ in Act, 1959, and its
role as provided under Sections 28-A and 28-B, the
dispute relating to the electoral roll cannot be adjudicated
under Section 70 of the Act, 1959 as the same is beyond
the scope of Section 70(2)(c) of the Act, 1959.
(iii) Under proviso to Section 18(1) of Act, 1959, the number
of associate members cannot exceed more than 15% of
the number of regular members. Around 18,000 persons
are admitted as associate members whereas there are
around 16,500 regular members. Under Bye-law No.36.6
read with Sections 16 and 18, unless the associate
members are provided an option to be regular members,
the election to the board cannot be held.
(iv) In terms of the law in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK
LTD . supra, the election process commences only after
11
publication of the calendar of events. Thus, the writ
petition filed before publication of the calendar of events
is maintainable.
(v) A writ petition is also maintainable if it is filed to ensure a
smooth and fair election in compliance with the applicable
provisions of law as held by the Apex Court.
Reliance is placed on the following judgments:-
1) Sri. Kumar M vs The State of Karnataka and others
(WP No.20333/2023).
2) Mysore and Chamarajanagar District Co-operative
Bank Ltd and others vs The State of Karnataka and
others (WP No.1333/2023).
3) Election Commissioner of India through Secretary vs
Ashok Kumar and others, (2000) 8 SCC 216. (para
32)
4) Lakshmi Charan Sen and Others vs A.K.M. Hassan
Uzzaman and others, (1985) 4 SCC 689.
5) T.S. Patil vs The J.R.C.S. and others, ILR 2007 KAR
491.
12
14. The learned senior counsel Sri. Jaykumar S. Patil
appearing for the contesting respondent No.6 raised the
following contentions:
(i) The Bank vide letter dated 24.05.2023 requested the
Co-Operative Election Authority to make preparations to
hold an election to its board. The Election Officer after
considering the steps taken by the Bank in preparing the
eligible and ineligible voters’ list and noticing some
discrepancies suggested a course correction.
Consequently, remedial measures are taken to redo the
voters’ list. Thus, there cannot be any objection to
eligible and ineligible voters’ lists.
(ii) Preparation of the electoral roll is an integral part of the
election under the Scheme of Act, 1959 and Rules, 1960
as such the petition under Article 226 of the Constitution
of India is not maintainable to seek a direction to redo
the voters’ list. If the petitioners are aggrieved by the
election results on account of a ‘faulty voters’ list’, then
recourse is under Section 70 (2) (c) of the Act, 1959.
13
15. In support of his contention reliance is placed on the
following judgments:
(i) Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha and
Another v. State of Maharashtra and Others
(2001)8 SCC 509
(ii) H. S. Raju and others vs State of Karnataka and
Others 2022(4) AKR 775
16. Learned Government Advocate Sri.Siddarth Baburao
submitted that even if Rule 13-D(2-A) is held to be mandatory,
the petitioners have a statutory remedy under Section 70 of
the Act, 1959.
17. Learned counsel for the Co-Operative Election
Authority Sri.T.L.Kiran Kumar urged that noticing non-
compliance with Rule 13-D (2-A), the election scheduled on
15.10.2023 earlier, was postponed to 21.01.2024 and in the
interregnum, the Bank and the Election Authority have taken
corrective measures, and voters’ list is finalised by following
the procedure.
14
18. To answer the questions raised, the Court has to
analyse the role of the Co-Operative Election Authority, the
right to vote, grounds for disqualification to vote, the
mechanism provided for conducting elections under the Act
and Rules, and the remedy provided under the Act and Rules
for breach of the provisions governing election to the board of
a co-operative Society.
19. As provided in Sections 28-A and 28-B, the Board of
a co-operative Society is to be constituted by holding an
election. The Act, 1959 and the Rules, 1960 provide for a
periodic election and a mechanism for conducting the election
to the Board of a co-operative Society.
20. At this juncture, it is relevant to refer to Section
39-A of Act, 1959 and Rule 13-C and the relevant portion of
Rule 13-D of Rules, 1960 dealing with elections.
Relevant portion of Section 39-A reads as under:
Conduct of election.- (1) Every general election of the
members of the board and election of the office-bearers
of a co-operative society including any casual vacancy
to the extent applicable shall be held under the
Superintendence of Co-operative Election
Authority.
15
(2) The general elections of the members of the
boards of the co-operative societies shall be held in four
stages as under:
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
Provided that the (Co-operative Election
Authority) may start the preparatory work for
the preparation of the electoral rolls for and the
conduct of the elections during the last six
months prior to the expiry of the term of office
of the board of a co-operative society”.
(Emphasis supplied)
21. Rule 13-C of Rules, 1960 which also corresponds to
the power conferred under Section39-A of the Act reads as
under:
13-C. Conduct of general elections to the board.-
(1) The Government may advise the Election Authority
on the suitability of dates for conducting elections as
per sub-section (2) of Section 39-A of the Act for
administrative reasons to be recorded in writing.
(2) Subject to the general superintendence and
directions of the Co-operative Election Authority,
the Chief Executive of the society shall prepare the
electoral roll for election to the co-operative society.
The list so prepared by the Chief Executive shall
be verified and approved by the Election Officer.
(emphasis supplied)
16
The relevant portion of Rule 13-D reads as under:
13-D. Preparation of electoral rolls and
calendar of events.-
(1) The Election Officer shall , after due
verification, send a consolidated list of all
co-operative societies in the district where
elections are due at least 120 days before
the date of expiry of the term of office of
the boards to the Co-operative Election
(Authority) indicating therein the following
particulars.-
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx.
(2) The Co-operative Election authority
shall, on receipt of such reports from the
(Election Officer), containing the list of
cooperative societies where elections are
due, publish the calendar of events for the
preparation of electoral rolls and the conduct
of elections of the boards of the co-operative
societies indicating the name and address of
each society
(2-A) The election officer shall take
steps for publication of voter list who
are not eligible to vote in the following
manner, namely -
(i) xxxx.
(ii) xxxx.
(iii) xxxx.
(iv) xxxx.
(v) the election officer has to hear and
dispose the objections filed by the
ineligible voters within sixty days
17
from the days of submission of
objections from such voters
(vi) Xxxx
(3) The Election Officer shall take steps for
publication of voters list in the
following manner namely,-
(a)xxxx
(b)xxxx
(c) xxxx
(d)xxxx
(4) It shall be the duty of every society to
furnish correct information required by
the Election Officer to enable him to
approve the electoral rolls as directed
by the Co-operative Election Authority.
(Emphasis supplied)
22. On a cursory reading of the above-mentioned
provisions, it is evident that the role of the Co-Operative
Election Authority under the scheme of the Act, 1959 and the
Rules 1960, in conducting the election to the board of a
co-operative society is all-pervasive. Right from the stage of
preparing the eligible and ineligible voters’ list till the
announcement of results, the Co-Operative Election Authority
has a predominant role to play in not only conducting the
elections to the board of a co-operative society but also in
finalising the electoral roll with reference to right to vote and
18
disqualification to vote. This aspect is to be kept in mind while
answering the questions raised in the petition.
th
23. The 97 Constitution Amendment which amended
Article 19(1)(c) and brought ‘co-operative society’ within the
ambit of Article 19(1)(c) is struck down by the Apex Court in
so far as it applies to the co-operative societies other than
multi-state co-operative societies in The Union of India vs
4
Rajendra N Shah . Even if the right to form an association
which is a fundamental right under Article 19(1)(c), is applied
to co-operative societies, such a fundamental right to form a
co-operative society does not elevate the ‘right to vote’ in a
co-operative society to the status of a fundamental right.
24. Section 20 of the said Act, 1959 in addition to
classifying different categories of members eligible to vote,
also deals with the disqualification to vote. Section 20(a-iv)
and (a-v) of the Act, 1959, are relevant for discussion.
25. Under Section 20(a-iv), the member who fails to
attend three of the last five general body meetings incurs
4
(2021) SCC ONLINE SC 474
19
disqualification to vote. Under Section 20(a-iv), the member
incurs disqualification for not utilising the minimum services or
facilities prescribed under the bye-law, for two co-operative
years out of the last five co-operative years. In other words
under the Act and Rules, the right to vote in an election to the
board of a society is not automatic but is to be earned by
fulfilling certain conditions and not fulfilling those conditions
results in disqualification to vote. If disqualification is disputed,
then the Election Officer has to decide the dispute in the first
instance.
26. Having considered the predominant role of the
Co-Operative Election Authority right from the stage of
preparing the electoral roll, finalising the same after hearing
the objections, publication of calendar of events and
conducting the elections, and having considered the nature of
the vote of member in a co-operative society, before
proceeding to answer the question whether there can be a
challenge to the electoral roll in a petition under Article 226 of
the Constitution of India, before the publication of the calendar
of events on the premise that the said roll is published in
20
violation of Rule 13-D(2-A), the Court has to consider if any,
statutory remedy is available to question the violation of
provisions of the Act, 1959 and the Rules, 1960 in preparing
the eligible and ineligible voters’ list.
27. Section 70 of the Act, 1959 provides for resolution
of dispute in connection with matters covered under the
provision. Relevant portion of Section 70(1) and (2) of the Act,
1959 reads as under:
Section 70 . Disputes may be referred to the Registrar
for decision.-
(1) Notwithstanding anything contained in any law for
the time being in force, if any dispute touching the
constitution, management, or the business of a
cooperative society arises.-
(a)xxxx
(b)between a member, past member, or person
claiming through a member, past member, or deceased
member and the society, its (board) or any officer, agent,
or employee of the society, or
(c)xxxx
(d)xxxx
Xxx
Section: 70(2) For the purpose of sub-section (1), the
following shall be deemed to be disputes touching the
constitution, management, or the business of a
co-operative society, namely.-
(a) xxxx
(b) xxxx
21
(c) any dispute arising in connection with the election of
a President, Vice-President, or any office-bearer or
Member of the board of the Society;
(d) XxXxxx
(e) xxxx
(Emphasis supplied)
28. The plain grammatical meaning of the expression
“ any dispute arising in connection with the election” itself
makes abundantly clear that the Authority under Section
70(2)(c) of the Act, 1959 can decide any dispute in connection
with the election of the members of the board of a co-operative
society. In addition, as can be noticed from Section 70(2)(c),
unlike the provisions in the enactments like The Karnataka
Municipalities Act, 1964, Karnataka Gram Swaraj and
Panchayat Raj Act, 1993, and even the Representation of
People Act, 1951, which provide for election dispute on specific
grounds enumerated in the provision, in Section 70(2)(c), the
challenge to the election to the Board of a co-operative society
is not restricted to certain specific grounds. Thus, there can be
no room for any doubt whatsoever that the Section 70(2)(c) of
Act, 1959 is wide enough to cover all questions in connection
with Section 20 (a-iv) (a-v) and Rule 13-D (2-A) referred to
above.
22
29. However, a word of caution is needed here. The
right to vote and the disqualification to vote in the election to
the board of the co-operative society is not just dependent on
the procedure to be followed under Rule 13-D(2-A) of the
Rules. The right to vote or ineligibility to vote depends on the
members meeting, the eligibility criteria prescribed under
Section 20(a-iv) and (a-v). Non-compliance with the
mandatory procedures prescribed under Rule 13-D(2-A) for
preparation of voters’ list ipso facto will not make the ineligible
voter, eligible to vote. Eligibility to vote is also required to be
demonstrated. It is quite possible that even if Rule 13-D(2-A)
is not followed, the list may conform to Section 20 (a-iv) and
(a-v) of the Act, 1959. Thus, apart from demonstrating that
the Rule 13-D is not complied,the member has to demonstrate
that he is eligible to vote but should also demonstrate that the
faulty voters’ list made an impact on the election results.
30. It is also relevant to note that non-compliance of
some part of Rule 13-D(2-A), may close the window provided
to repay the dues within the time fixed under Rule 13-D(2-A).
It will take away the opportunity to be an eligible voter or an
23
opportunity to contest. Losing a chance to contest an election if
the nomination paper is rejected on the premise that the
candidate’s name is not in the electoral roll can also be
questioned under Section 70 of the Act, 1959.
31. Learned Senior Counsel for the petitioners referring
to the judgment in T.S. Patil supra , and also the language
employed in Section 70(2)(c) of the Act, 1959, urged that the
person aggrieved by the election results can challenge the
election only on the grounds available under the
Representation of People Act, 1951 (hereinafter referred to as
the ‘Act of 1951’ for short). Referring to Sections 100 and 101
of the said Act, it is urged that challenge to the election on the
ground that the electoral roll was not prepared by following the
mandatory rules is not recognised. It is further urged that
Section 70(2)(c) also does not recognize the challenge to the
election on the grounds of violation of rules prescribed for the
preparation of the electoral roll.
32. In the case of T.S.PATIL supra , the Court was
examining whether the authority under Section 70 of Act, 1959
24
deciding election dispute can declare the petitioner as an
elected candidate by setting aside the election of a returned
candidate as Section 70(2)(c) is silent on this aspect. This
Court following the judgment of CHANNE GOWDA AND
5
ANOTHER VS. STATE OF KARNATAKA AND OTHERS which
in turn followed the judgment of the Division Bench in
HAYAT
6
BEIG VS. MUNIVENKATE GOWDA AND OTHERS has taken
a view that even in respect of the matters for which no specific
provision is made in Section 70, the general principles of
Sections 100 and 101 of the Act of 1951 and the law laid down
under the said provisions can be applied and in deserving
cases, the Authority is competent to pass an order declaring
the petitioner as elected apart from setting-aside the election
of a returned candidate. Now it is necessary to consider the
relevant portion of Section 100 of the Act of 1951 which reads
as under.
100. Grounds for declaring election to be void.-
(1)xxxx
(a)xxxx
(b)xxxx
(c)xxxx
5
1975 (2) Kar.L.J. 235
6
(1972) 1 Mys.L.J. 121
25
(d)that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) to (iii) xx
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules or
orders made under this Act, shall declare the
election of the returned candidate to be void.
(Emphasis supplied)
33. Admittedly, Section 70(2)(c) does not specify the
grounds on which an election to the board of a co-operative
society can be set aside. Assuming that there is a vacuum as to
what kind of relief can be granted under Section 70(2)(c),
applying the principles contained in Section 100(1)(d-iv) of Act
of 1951, and following the ratio in T.S.PATIL and CHANNE
GOWDA and HAYAT BEIG supra, the non-compliance of Rule
13-D(2-A) of Rules, 1960 can be read as a ground available
under Section 70(2)(c) of Act, 1959 to challenge the election to
the board of a co-operative society. Thus, the Authority under
Section 70 of the Act, 1959 can also look into the violation of
the provisions of the Act, 1959 and Rules, 1960, applicable to
the election to the board of a co-operative society. If, it is
established that the electoral roll is prepared in violation of the
mandatory rules and that the result of the election is affected
26
on account of faulty electoral roll, then, the Authority under the
Act is competent to pass an appropriate order on the election
by assessing the impact of faulty electoral roll on the outcome
of the election. This being the position, this Court is of the view
that the judgment rendered in T S PATIL supra does not come
to the aid of the petitioners. On the other hand, the principle
laid down in the said judgment will enable the Authority under
Section 70 to examine the violation of Rule 13-D(2-A) of Rules,
1960 as well.
34. Referring to Rules 13-D, Rule 14, and Form-XI and
XII under Rule 14, it is urged that two different calendar of
events i.e., one about the preparation of electoral rolls, and
another about the conduct of election to the Board of
Co-operative Society, are contemplated under the said rule.
Thus, the preparation of the electoral roll is not an intermediate
stage and part of the election process is the submission on
behalf of the petitioners.
35. Learned Senior Counsel Sri. M.R. Rajgopal placed
heavy reliance on the judgment of the Division Bench in
MYSORE AND CHAMARAJANAGAR DISTRICT
27
CO-OPERATIVE BANK LTD supra to urge that the election
process commences from the date of publication of the
calendar of events under Form-XII. Since the preparation of
the electoral roll is not an integral part of the election process,
then the writ petition filed challenging the procedure initiated
or adopted to prepare the electoral roll can be entertained as
calendar of events was not published when the petition was
filed.
36. The question decided in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK LTD
supra is “whether the authority under the Rule, 1960 has the
power to recall the notification issued under Rule 14(1)
Form-XI of Rules, 1960?” by holding that the procedures
contemplated under Rule 13-D(2-A) are mandatory, the
Division Bench held that Notice under Form-XI can be
withdrawn by the Election Authority if the procedure
contemplated under Rule 13-D is not complied with.
37. In the aforementioned judgment, the Division Bench
did not decide the question, “whether a writ petition can be
filed under Article 226 of the Constitution of India to question
28
the eligible and ineligible voters' list on the premise that the
requirement of Rule 13-D(2-A) is not followed?” Though, in the
said judgment in paragraph(e), the Division Bench has taken a
view that publication of notice under Form-XI cannot be
construed as the commencement of the election process and
the election process commences only after the publication of
notice under Form-XII, the said observation of the Division
Bench cannot be read to mean that as long as election process
has not commenced, the writ petition is maintainable to
challenge the electoral roll.
38. It is a well-settled principle of law that the judgment
cannot be read like a statute, and has to be read in the context
in which it is rendered. A judgment is an authority only on the
matter which is decided by it, and not necessarily on what all
logically flows from in interpreting the judgment.
39. The findings or observation on a question namely,
whether the election process commences from the date of
publication of notice under Form-XI or under Form-XII, in the
context of the dispute where the Court was deciding a question
29
whether the Election Authority can recall the notice under
Form-XI cannot be used to answer the questions;
(a) Whether the preparation of the electoral roll is an
intermediate stage and part of the election process,
(b) Whether a writ petition would lie to challenge the
electoral roll.
Thus, the judgment in MYSORE AND
CHAMARAJANAGAR DISTRICT CO-OPERATIVE BANK LTD
supra is not an answer to aforementioned questions.
40. Whether the preparation of the electoral roll is part
of an election is the question answered by the Apex Court in
Shri Sant Janardan supra . The Apex Court has analyzed the
scheme of the Maharashtra Co-operative Societies Rules
concerning the preparation of the electoral roll and the process
of filing objections to the ineligible voter's list. The Apex Court
has taken the view that the preparation of the electoral roll is
also an intermediate stage in the election. Paragraph No.7 of
the said judgment is relevant as extracted below:
30
"7. In the light of the aforestated provisions of Chapter XI-A of
the Act and the Rules, we will examine as to whether the
preparation of electoral rolls is an intermediate stage in the
process of election. The provisions referred to above show that
Chapter XI-A was enacted and the Rules were framed specially
to deal with the election of the specified societies under Section
73-G of the Act. Section 144-X provides that various stages of
the election shall also include the preparation of the list of
voters. Once the statute provides that the preparation of the
voters' list shall be part of the election process, there is no
reason to hold that the preparation of the electoral roll is not an
intermediate stage in the process of the election of a specified
society. This matter can be examined from another angle. A
perusal of the Rules discloses that the preparation of provisional
list of voters, filing of objection against the provisional list of
voters, consideration of the objection by the Collector, and
finalizing the list of voters, all occur in the Rules which cover the
entire process of the election. The Rules framed for the election
of specified societies are a complete code in itself providing for
the entire process of election beginning from the stage of
preparation of the provisional voters' list, decision on the
objection by the Collector, finalization of electoral rolls, holding
of election and declaration of result of the election. In view of
the scheme of the Act and the Rules, the preparation of voters'
list must be held to be part of the election process for
constituting the Managing Committee of a specified society.
In Someshwar Sahakari Sakhar Karkhana Ltd. v. Shriniwas Patil,
Collector [(1992) 1 Mah LJ 883] it was held that in the scheme
of the provisions of the Act and the Rules, the preparation of the
list of voters for election to the Managing Committee of a
specified society is an intermediate stage in the process of the
election. Similar view was taken in Shivnarayan Amarchand
Paliwal v. Vasantrao Vithalrao Gurjar [(1992) 2 Mah LJ 1052].
However, in v.
Karbhari Maruti Agawan State of
Maharashtra [(1994) 2 Mah LJ 1527] although it was held that
the preparation of the list of voters is an intermediate stage in
the process of election, but that does not debar the High Court
from entertaining a petition under Article 226 of the Constitution
challenging the validity of the electoral roll. It appears that the
consistent view of the Bombay High Court on the interpretation
of Chapter XI-A of the Act and the Rules framed thereunder is
that the preparation of the electoral roll is an intermediate stage
of the election process of the specified societies. This being the
consistent view of the High Court on the interpretation of
provisions of a State Act, the same is not required to be
disturbed unless it is shown that such a view of the High Court is
palpably wrong or ceased to be good law in view of amendment
31
in the Act or any subsequent declaration of law. We are,
therefore, of the view that the preparation of the electoral roll
for the election of the specified society under Chapter XI-A and
the Rules framed thereunder, is an intermediate stage in the
process of election for constituting the Managing Committee of a
specified society".
(Emphasis supplied)
41. The provisions of the Rules, 1960, in so far as the
conduct of elections are complete code in itself. The said
judgment is indeed rendered interpreting the provisions of the
Maharashtra Co-Operative Societies Act and Rules. It is also
true that the procedures under the said Act and Rules in
preparing the electoral roll are different from the one provided
in the Act, 1959 and Rules, 1960. However, the fact that both
enactments provide an adjudicatory mechanism before
finalizing the final electoral roll and also the fact that an
independent authority other than the co-operative society is
assigned with the role of preparing the electoral rolls and
conducting elections , the underlying philosophy in both Rules
in so far as conducting elections to the board of a co-operative
society is by and large the same.
42. Though, the provisions of the Maharashtra Act
specifically provide for challenging the election on the ground
32
of non-compliance with the provisions of the Act and Rules,
and though the Act, 1959, does not specifically provide as to
on what grounds the election to the board of a co-operative
society can be set aside, for the reasons already supra, the
challenge to an electoral roll is very much permissible under
Section 70 of the Act, 1959, (subject to aggrieved party
establishing that such errors impacted the outcome of the
elections) as preparation of electoral roll is part of election
process, in the context of questions raised in the petition.
43. This being the position, the contentions raised by
the petitioners that two different calendar of events are
envisaged under Rules, 1960 and the writ petition to challenge
the electoral roll is maintainable if the writ petition is filed
before publication of calendar of events, cannot be accepted.
44. In the light of the reasons recorded above, this
Court is of the view that as a general principle, the writ petition
to challenge the electoral roll published for holding elections to
the board of a co-operative society is not maintainable.
However, this Court is not holding that the remedy under
Article 226 of the Constitution of India is completely ruled out.
33
There may be situations, in the facts and circumstances of a
given case, the High Court in the exercise of plenary
jurisdiction under Article 226 of the Constitution of India may
have to step into avert a total miscarriage of justice in
preparing the electoral roll. It is not desirable to spell out those
circumstances in this petition. Suffice it to say that the facts
obtained in this petition do not warrant such exercise.
45. As far as the contention that the inaction on the
part of the Bank in not following the mandate of Section 16
and Bye-law No.36.6 to reclassify the associate members to
regular members is concerned, this Court is of the view that
none of the associate members has come forward claiming the
right to vote by becoming a regular member. The associate
members under Section 20 of Act, 1959 have no right to vote.
Hence, the petitioners cannot take it as a ground to challenge
the electoral roll. If there is any lapse on the part of the Bank
in not complying with the requirement of Section 16 and Bye-
law No.36.6, the petitioners have to approach the Authority
under the Act for appropriate remedy. Inaction to remove
associate members or to change their status from associate
34
members to some other category of members cannot be a
ground to urge that the electoral roll be redone either by
removing or changing the status of associate members to
some other category of members.
46. As of now, as the law stands associate members do
not have the right to vote. Hence, those associate members
continuing in the same status though contrary to the provisions
of Sections 16 and 20 of Act, 1959 is not a ground to invoke
Article 226 of the Constitution of India with a prayer to redo
the voters’ list.
47. The petitioners have placed reliance on the
judgment of the Hon’ble Apex Court in ASHOK KUMAR’s case
. Referring to paragraph No.32 of the judgment, it is
supra
urged that any step taken by filing a petition should not be
construed as a petition calling an election if the step taken sub-
serves the progress of the election and facilitates the
completion of the election. It is also urged that the decisions
taken by the election commission are open to the judicial
review on the well-settled parameters which enable judicial
review of decisions on statutory bodies such as on a case of
35
malafide or arbitrary exercise of power being made out or
statutory body being shown to have acted in breach of law. In
this petition, no case is made out to hold that the process has
suffered on account of malafides and arbitrary exercise of
power. Intervention in the election process in the facts and
circumstances presented before this Court certainly does not
enable the smooth progress of the election. Moreover, as
already held, the statutory remedy is available to the
petitioners to challenge the electoral roll.
48. Reliance is also placed on Lakshmi Charan Sen
supra and it is urged that the preparation of the election roll
and publication of the electoral roll are not part of the election
process. It is relevant to note that in the said case, the Apex
Court has not decided the question whether the expression
‘election’ in Article 329(b) of the Constitution includes the
process of preparation of electoral roll. In this petition, the
preparation of electoral roll under the Rules, 1960 is examined.
Placing reliance on Shri Sant Janardan supra which is
decided in the context of the rules governing election to a
co-operative society, the co-ordinate Bench of this Court in
36
Mohammad Beary supra has taken a view that the dispute in
connection with the election includes preparation of electoral
rolls. Even in H.S. RAJU supra, the co-ordinate Bench of this
Court by following the law in Shri Sant Janardan supra, and
the peculiar facts of the said case has taken a view that the
dispute relating to election to the board of a co-operative
society is to be resolved under Section 70. The contention that
judgments in Mohammad Beary and H.S. Raju supra are per
incurium is not accepted.
49. It is relevant to note that under the scheme of the
Act, 1959, the elections to the co-operative societies are to be
held in phases. Section 39-A of the Act, 1959 provides for four
stages for holding the election to the different categories of
co-operative societies viz., a primary co-operative society, a
secondary co-operative society, a federal co-operative society,
and an Apex co-operative society. Because election to one
category of co-operative society is dependent on another
category of co-operative society and if, election to one category
of society is stalled; it may have a cascading effect and may
also affect the elections of the next categories of co-operative
37
societies. This is one of the peculiar features of elections to
co-operative societies distinct from elections to local bodies,
legislative assemblies, or even the parliament.
50. For the reasons recorded, this Court concludes as
under:
(a) The preparation of electoral roll under Rule, 13-D(2-
A) of the Karnataka Co-Operative Rules 1960 is an
integral part of the election process in the context of
a question whether the writ petition is maintainable
when the challenge is laid to the procedure initiated
for preparing electoral roll.
(b) In a dispute under Section 70(2)(c) of the
Karnataka Co-operative Societies Act, 1959, the
Authority under Section 70 can decide the question
on the validity of electoral roll prepared under the
Rules, 1960 and its impact on the election.
(c) The judgments in MOHAMMAD BEARY and H.S.
RAJU are not per incurium
(d) The writ petition under Article 226 of Constitution of
India to challenge the electoral roll on the ground of
38
non compliance of Rule 13-D(2-A) of Rules, may lie
in exceptional cases.
51. Based on the conclusions arrived at in the facts and
circumstances of the case, this Court is of the view that no
exceptional case is made out in this petition to exercise Article
226 jurisdiction. This Court has not expressed any opinion on
the eligible and ineligible voters’ list prepared during the
pendency of the petition. Hence, the following:
ORDER
Writ petition is disposed of on the following terms:
(i) The returning officer shall count the votes cast in the
th
election held on 21.01.2024, to the Board of the 6
respondent bank, and shall announce the results.
(ii) The liberty is reserved to the petitioners or any aggrieved
person to raise objections to the validity of the electoral roll
in an election petition under Section 70(2)(c) of the
Karnataka Co-operative Societies Act, 1959.
(iii) If such a dispute is raised, the Authority under Section 70
of the Karnataka Co-operative Societies Act, 1959, shall
examine all questions including the question relating to
39
validity of the eligible and ineligible voters’ list and impact
th
on the election to the Board of the 6 respondent – Bank.
(iv) Nothing is expressed on the merits of the eligible and
ineligible voters' list published during the pendency of
the petition and said question kept open to be decided
in the dispute under Section 70 of the Karnataka Co-
operative Societies Act, 1959, if raised.
SD/-
JUDGE
BRN/CHS