CHANNE GOWDA v. STATE OF KARNATAKA — 1975 DIGILAW 79 (KAR)

( 1 ) THE petitioners in this writ petition have questioned the correctness of the order passed by the Asst Registrar of Cooperative Societies, Ramanagaram in MIS. DISF. No. 9 of 1973-74 on his file, holding that he had no jurisdiction to enquire into the validity of an election to thei Committee of a Co-operative Society under S. 70 of the Karnataka Co-operative Societies act, 1959 (hereinafter referred to as the 'act' ). ( 2 ) THE ground on which the Asst Registrar of Co-operative Societies declined to investigate into the election dispute was that the Karnataka co-operative Appellate Tribunal had heid in an appeal before it that disputes relating to election to the Committee of Co-operatve Societies could not be decided under S. 70 of the. Act. The Tribunal in rejecting the election petition depended upon a decision of this Court in Hayat Beig v. Munivenkle Gowda, (1872) 1 Myslj. 121, in which a Division Bench of this Court had held that a Munsiff functioning under Rule 17 of the Karnataka Village panchayat (Election of Chairman and Vice-Chairman) Rules, 1969, could not set aside the election to the office of the Chairman in the absence of any statutory provision laying down the grounds on which an election could be set aside. Following the said decision, the Tribunal held that in the absence of any statutory provision laying down the grounds on which an election to the Committee of Cooperative Society could be set aside, under the Act, a dispute relating to an election could not be enquired into under S. 70 of the Act. ( 3 ) SRI M. Papanna, learned Counsel for the petitioners, raised among others, three contentions in support of the writ petition. ( 3 ) SRI M. Papanna, learned Counsel for the petitioners, raised among others, three contentions in support of the writ petition. They are : (1) The Tribunal was wrong in coming to the conclusion that a dispute relating to an election could not be enquired into under S. 70 of the act, on the basis of the decision of this Court in Hayat Brig's case (1) as the said decision related to an election of Chairman under the Karnataka village Panchayat and Local Boards Act and not to an election held under the Act; (ii) The Tribunal should have held that the observations made by the high Court in Hayat Beig's case (1) stating that the Munsiff could not have set aside the election in the absence of statutory provisions laying down the grounds were in the nature of obiter dicta, as that case could have been decided on the finding recorded by the High Court that the Munsiff had not recorded a specific finding that the result, of the election had been materially affected by reason of non-compliance with a certain rule; and (iii) That sub-rule (4a) of Rule 31 of the Rules framed under the Act gave sufficient guidance to the Registrar of Arbitrator functioning under s. 70 of the Act, as to the manner in which a dispute relating to election should be disposed of. ( 4 ) IN Hayat Beig's case (1), the facts were these : At a election held for the office of the Chairman of a Village Panchayat, the petitioner and the first respondent in that case were the contesting candidates. At the, time of the scrutiny of the nomination papers, an objection was raised to the nomination of the petitioner therein on the ground that it had not been presented by the proposer as requird by the rule governing the election. That objection was over-ruled by the person conducting the election. Thereafter, the election was held. At the election, the petitioner therein secured more number of votes than the other candidate and he was declared elected as Chairman. Thereupon, the first respondent therein filed a petition before the, Munsiff under Rule 17 of the Karnataka Village Panchayats (Election of the Chairman and the Vice-Chairrnan) Rules 1959 questioning the validity of the election of the petitioner therein. The learned Munsiff set aside the election and directed fresh election. Thereupon, the first respondent therein filed a petition before the, Munsiff under Rule 17 of the Karnataka Village Panchayats (Election of the Chairman and the Vice-Chairrnan) Rules 1959 questioning the validity of the election of the petitioner therein. The learned Munsiff set aside the election and directed fresh election. While doing so, he failed to record a finding that the election had been materially affected by the improper acceptance, of the nomination paper or by non-compliance with the statutory provisions. When the matter came up before this Court, in a petition filed under Art 226 of the Constn, this Court held that the election petition was liable to be dismissed as the Munsiff could not have set aside the election as there was no finding that the result of the election had been materially affected on account of non-compliance with any statutory provision. It was also held that in the absence of any statutory provisions corresponding to Ss. 100 and 101 of the Representation of the People act, 1961, laying down the grounds on which an election could be set aside, the Munsiff could not have set aside the election. ( 5 ) AS already mentioned earlier, that decision was rendered on the basis of the provisions of the Karnataka Village Panchayats and Local boards Act and the Rules framed thereunder. If the decision had laid down that unclear the provisions of the Co-operative Societies Act, no election dispute could be enquired into under S. 70 of the Act, on account of the omission on the part of the law making authority to make a provision regarding thq grounds on which an election could be set aside, this petition had to be referred to a larger Bench to reconsider the correctness of the view expressed therein. In the circumstances of this case it is not necessary to do so, as I find that the provisions of the Act and the Rules framed there under are different from the provisions governing an election of a Chairman of a Panchayat. ( 6 ) AFTER referring to the provisions of Ss. In the circumstances of this case it is not necessary to do so, as I find that the provisions of the Act and the Rules framed there under are different from the provisions governing an election of a Chairman of a Panchayat. ( 6 ) AFTER referring to the provisions of Ss. 100 and 101 of the Representation of the People Act, and corresponding provisions in the Presidential and Vice-Presidential Election Act, 1952, the Karnataka Municipalities (President and Vice-President Election) Rules, 1955, and the Karnataka Village panchayats and Local Boards Act, 1959, this Court, observed as follows in Hayat Beig's case (1):" Thus it is seen, that in all statutes and statutory Rules relating to elections and the trial of election petitions, the pattern of the law is the same; the election of a returned candidate can be set aside on the improper acceptance or non-compliance with any of the provisions of any law only if it is further established that the result of the election in so far as it concerns the returned candidate has been materially affected. . . . . . . It was urged by Sri P. Subba Rao learned Counsel for the first respondent that since S. 30 (2) of the Act read with Rule 17 provides that any dispute relating to the validity of the election of a Chairman or Vice-Chairman shall be decided by the Munsiff, he has got the jurisdiction and power to declare an election void if it is established that any of the relevant rules have not been followed. If Mr. Subba Rao's contention is accepted, the Munsiff has to declare the election of a returned andidate void for non-compliance with the provisions of a Rule like rule 5, while he has no power to declare the election void if corrupt practice) is established or if certain fundamental ballot papers etc, are violated. Such a situation could not have been contemplated by the framers of the Act. Under the Act, the Govt has the, power to make rules and thereunder provide the grounds for declaring the election of the returned candidate void. It appears to us that the Rule making authority has by oversight omitted to frame a Rule stating the grounds on which the election of a returned candidate shall be declared to be void. Under the Act, the Govt has the, power to make rules and thereunder provide the grounds for declaring the election of the returned candidate void. It appears to us that the Rule making authority has by oversight omitted to frame a Rule stating the grounds on which the election of a returned candidate shall be declared to be void. In the absence of any such Rule, we fail to see how the Munsiff exercising his powers under S. 30 (2) read with Rules 17 and 18 of the rules can try an election petition. The Munsiff under the Act exercises his powers not as a Court but a Tribunal. He has no inherent powers of a Court. Therefore the Munsiff could not have set aside the election of the petitioners. "the two points which persuaded the learned Judges to hold that the Munsiff could not set aside the election to the office of a Chairman of a Village panchayat in the above case, were (1) that an election of a returned candidate could not be set aside in the absence of proof that on account of non-compliance with any law, the result of the election in so far as it concerned the returned candidate had been materially affected; (2) the Munsiff who was functioning as a Tribunal and not as a Court had no inherent powers of a Court and therefore, he could not have set aside the election in the absence of any specific statutory provision which laid down the grounds on which the election could be set aside. ( 7 ) WE are concerned in this case with the latter ground stated above. Sub-rule (4a) of Rule 31 of the Rules framed under the Act states that the registrar, the Arbitrator or other persons deciding the dispute under S. 70 of the Act shall give a decision or award as the case may be in accordance with justice, equity and good consceience. I am of the view that sub-rule (4a) of Rule 31 of the Rules confers plenary power on the Registrar, the Arbitrator or any other persons deciding the dispute under S. 70 of the Act, which is comparable to the powers of a Court. The legislative intention becomes clear if S. 70 is read with S. 118 of the Act. I am of the view that sub-rule (4a) of Rule 31 of the Rules confers plenary power on the Registrar, the Arbitrator or any other persons deciding the dispute under S. 70 of the Act, which is comparable to the powers of a Court. The legislative intention becomes clear if S. 70 is read with S. 118 of the Act. S. I 18 of the Act provides that save as provided in this Act, no civil or revenue, Court shall have any jurisdiction in respecti of any dispute required under S. 70 of the act to be referred to the Registrar or to an Arbitrator. Sub-sec (1) of s. 70 of the Act provides that notwithstanding anything contained in any law for the time being in force, if any dispute touching thei constitution, management or the business of a Co-operative Society shall be referred to the registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute. Cl (c) of sub-sec (2) of s. 70 of the Act provides that any dispute arising in connection with the election of a President, Vice-President, Chairman, Vicerchairman, Secretary, treasurer or Member of a Committee of the Society shall be deemed to be a dispute touching the constitution, management or the business of a co-operative Society. It follows that all th questions which have to be decided in a dispute relating to an election to a Committee of the Society have to be decided by the Registrar or the Arbitrator under S. 70 of the act, in the same way in which a Civil Court would decide. ( 8 ) IN Hayat Beig's case (1), this Court proceeded on the basis that in all statutes and statutory rules relating to elections, the pattern of the law was the same as it was found in Ss. 100 and 101 of the Representation of the people Act, 1951. While malting that observation, the Court overlooked the Act, Societies Registration Act and the Companies Act, only to mention a few by way of illustration, in which disputes relating to elections were likely to arise and which did not contain elaborate provisions similar to ss. 100 and 101 of the Representation of the people Act, 1951. While malting that observation, the Court overlooked the Act, Societies Registration Act and the Companies Act, only to mention a few by way of illustration, in which disputes relating to elections were likely to arise and which did not contain elaborate provisions similar to ss. 100 and 101 of the Representation of the People Act, 1951, setting out the grounds on which an election to an office under those Acts could be set aside, but still election disputes arising thereunder were entertained and decided by competent Courts and Tribunals. ( 9 ) ON a perusal of the provisions of Ss. 100 and 101 of the Representation of the People Act, 1951, it becomes clear that the Parliament had only enacted in a statutory form in those provisions, the various grounds on which elections had been set aside by several election Tribunals and courts prior to their enactment under various laws governing the elections, which were in force in India and in England. It is, therefore, difficult to hold that merely because there are no express provisions similar to Ss. 100 and 101 of the Representation of the People Act, either in the act or the Rules framed thereunder, no dispute relating to an election can be entertained and decided under S. 70 of the Act. If the principle enunciated by the Division Bench in Hayat Beig's case (1) is extended to disputes under the Act, the result would be that the disputes regardng elections under the Act can neither be, decided by a Civil Court by reason of S. 118 nor by the Registrar or Arbitrator under S. 70 of the Act, on the ground there are no provisions similar to Ss. 100 and 101 of the Representation of the People Act, 1951. I do not think that the legislature ever intended that such a result should follow. It is the basic principle of administration of justice that wherever there is an injury there should be a remedy and where there is a remedy it should not be lightly thrown away. It is the duty of the Court or the Tribunal to mould the relief suitably so that there may be no failure fo justice. Although there are no statutory provisions corresponding to Ss. It is the duty of the Court or the Tribunal to mould the relief suitably so that there may be no failure fo justice. Although there are no statutory provisions corresponding to Ss. 100 and 101 of the Representation of the People act, 195 setting out the1 grounds on which the election to a Co-operative society can be set aside, it is open to the Registrar or the Arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law and to decide the disputes relating to election on the basis of principles of justice, equity and good conscience But, while doing so, he should steer clear of principles which are contrary to or not warranted by the Act. ( 10 ) IN view of the foregoing, I hold that the Tribunal has erred In holding that no dispute relating to election could be entertained under s. 70 of the Act, relying upon the decision of this Court in Hayat Beig's case (1) which was applicable to disputes arising under Karnataka Village panchayat (Election of Chairman and Vice-Chairman) Rules, 1959 only. The Asst Registrar was also not right in holding that the dispute before him was not maintainable. ( 11 ) THE impugnepd derision of the Asst Registrar is. therefore, set aside He is directed to dispose in accordance with law. No costs. ( 12 ) A copy of this order shall be sent to the Asst Registrar within two weeks from today. --- *** --- .