G. S. SHIVAKUMAR v. STATE OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION
2001-04-09
A.V.SRINIVASA REDDY
body2001
DigiLaw.ai
SRINIVASA REDDY, J. ( 1 ) W. P. No. 16363/99 is filed praying for quashing of the notification dated 3. 5. 1999 (Annexure-C) issued by the fourth respondent and to issue such other appropriate write or order as the Court deems fit. W. P. No. 17356/99 is filed for quashing the circular bearing No. CMW 78 CWP 99 dated 22. 5. 1999 (Annexure D) and for a writ of mandamus directing the fourth respondent Election Officer to hold the elections to the Committee of Management of Society in pursuance to his notification dated 3. 5. 1999 at the High Court premises at Bangalore where the Registered Office of the Society is situate. ( 2 ) THE grounds urged in support of the prayers sought for by thepetitioner in W. P. 16363/99 are: (I) the appointment of the fourth respondent being for a term of three years, his appointment is contrary to the provisions of the Act as he could not have held the elections to the committee of management which was to be elected for a period of five years which exceeds the period for which his appointment was made and, therefore, his appointment is vitiated; (II) the operation of the society being limited to the District level only, the number of members that could be elected to the committee of management could not have been more than 13 and the notification issued proposing to elect 15 members to the committee is without the authority of law and, therefore, it has to be struck down; (III) the restriction imposed on the number of retired employees who could be elected as a member to the committee of management being three, the notification does not indicate the restriction and is violative of the bye-law and, therefore, cannot be sustained in law and (IV) in respect of societies whose area of operation extend beyond a District, the power to appoint the election officer is vested in the addl. Registrar of Co-operative Societies and, therefore, the election of the officer by the Joint Registrar of the Co-operative Societies is without authority of law and all actions pursuant to the said appointment are a nullity in the eye of law. !n WP.
Registrar of Co-operative Societies and, therefore, the election of the officer by the Joint Registrar of the Co-operative Societies is without authority of law and all actions pursuant to the said appointment are a nullity in the eye of law. !n WP. 17356/99 the petitioners have urged the twin grounds, namely, not making it compulsory to insist on production of identity card by a member at the time of voting is ultra vires and the holding of election in the premises of Government Employees Association building at Bangalore is unsustainable in law. ( 3 ) BRIEFLY stated the facts are :the petitioners in these petitions are the employees on the establishment of High Court of Karnataka and the Judicial Department and all of them are members of the third respondent-society. The third respondent is registered under the Co-operative Societies Act. The society has its own bye-laws. Under bye-law No. 28 of the society it is laid down that all the members of the committee of management shall be elected by the General Body. The Joint Registrar of cooperative Societies granted permission to the third respondent cooperative Society to hold General Body Meeting of the society and to conduct election to the committee of management of the society at the Karnataka State Employees Association Building, Cubbon park, Bangalore. An order was also issued by the Govt. of Karnataka dispensing with the presentation of the identity cards at the time of voting. These Writ Petitions were filed pursuant to the issuance of notification dated 5-2-1999 appointing the fourth respondent as the election Officer and the publication of the calendar of events by the election Officer on 3-5-1999, praying for quashing of the notification as also the calendar of events issued on the grounds stated supra. The petitioners contend that the notification issued and the appointment of the Election Officer is contrary to law and without the authority of law. The petitioners also challenge the order issued by the Joint Registrar of Co-operative Societies permitting voting sans presentation of the identification cards.
The petitioners contend that the notification issued and the appointment of the Election Officer is contrary to law and without the authority of law. The petitioners also challenge the order issued by the Joint Registrar of Co-operative Societies permitting voting sans presentation of the identification cards. ( 4 ) IN the objection statement filed on behalf of the society andsome of the office bearers of the committee of management it is pointed out the relaxation of Rule 13-A which makes it mandatory for production of identity cards at the time of casting the vote was done away by the Government at the instance of a stay order issued by this Court. The notification making this relaxation is based on the' order of stay granted by this Court and therefore, there is no illegality as such in the direction issued to that effect. Meeting the grounds urged in the Writ Petition, it is stated by the society in its statement of objections that most of the grounds urged in the Writ Petition are on the basis of the bye-laws formulated at time of formation of the society completely overlooking the fact that they have been subsequently amended bringing about vast changes in the bye-laws. It is stated that the election was conducted in accordance with law and in strict compliance of the current bye-laws. It is stated that as the very basis on which the grounds are urged in the Writ Petition being non-existent, the Writ Petitions have to be dismissed. ( 5 ) I have heard the learned Counsel on both sides. ( 6 ) AT the hearing, preliminary objection was raised bymr. M. Shivappa, learned Counsel for the respondent No. 3-society as to the maintainability of the petitions. He challenged the maintainability of the petitions on two grounds. The first ground is that the petitioner in W. P. 16363/99 having been returned in the election, cannot be permitted to challenge the election process that preceded the election as he would not be a 'person aggrieved'. Elaborating his submission, it is contended by the learned Counsel for the respondent-society that the petitioner was not only successful in the election but he also continues to be a member of the committee of management.
Elaborating his submission, it is contended by the learned Counsel for the respondent-society that the petitioner was not only successful in the election but he also continues to be a member of the committee of management. Though, according to the learned Counsel for the respondent-society, the petitioner had every right to challenge the election process prior to the actual election as a member of the society, the petitioner, as of now, has lost that right to call in question the process adopted not only because he contested the election but also on account of the fact that he was returned in the election as a successful candidate and is presently a member of the committee of management and till date he continues to retain the membership of the committee of management. ( 7 ) THE second ground urged by the learned Counsel for thesociety is that the Act provides for an effective alternative remedy under Section 70 of the Karnataka Co-operative Society's Act (hereinafter referred as 'act') and even if really aggrieved the petitioners in both the petitions could have only set in motion the right available to them under Section 70 of the Act and could not approach this Court in a petition under Article 226 of the Constitution. ( 8 ) MR. P. S. Rajagopal, learned Counsel for the petitioner, on theother hand, submitted that the mere fact that the petitioner in w. P. 16363/39 contested the election, successfully, should not come in the way of his right to challenge the election process adopted by the respondents if, it was in any way opposed to law and his being successful in the election would not render lawful all acts done contrary to law and the petitioner would be entitled to challenge she election process and also, since the results have been announced, the verv result of the election as it is the outcome of a process which was ab initio void As regards the existence of an effective alternative remedy, he submitted that unless the High Court's jurisdiction is barred, it is wide and covers all violations of law or the constitution. In this connection he relied on the decision of the apex Court in K. VENKATACHALAM vs A. SWAMICKAN AND others. Therefore, he submitted that the Writ Petitioners cannot be ousted on the ground that the Writ Petitions are not maintainable.
In this connection he relied on the decision of the apex Court in K. VENKATACHALAM vs A. SWAMICKAN AND others. Therefore, he submitted that the Writ Petitioners cannot be ousted on the ground that the Writ Petitions are not maintainable. ( 9 ) I have given my anxious consideration to the contentionsadvanced by the learned Counsel on both sides. It is by now well- settled that in order to set in motion the remedy available to a person under Aiticle 226 of the Constitution a person has to qualify himself as an aggrieved person'. Unless a person is aggrieved, the taw cannot go to his aid. W. P. 16363/99 as it was originally filed could not have been faulted at all as the petitioner in his capacity as a member of the society had every right to call in question a process which according to him was contrary to law and interfered with his rights as a member. As a member of the society he would qualify as 'a person aggrieved' provided his rights had been in any affected or he suffered any prejudice. ( 10 ) THE question is, whether the petitioner by his very conductand on account of the events that later on unfolded, lost the status of a person aggrieved ' midway and therefore, the right to prosecute the present petition. It is trite law that courts can go to the aid of a person, only if he is. aggrieved in the real sense of the term, barring a few exceptions such as the writs like habeas corpus or quo warranto and the petitions filed in public interest. The petitioner at the time of filing the Writ Petition complained about the election process alleging that it was unlawful. He even preferred a Writ petition to this Court for quashing the election process adopted by the respondents but, nevertheless, contested the election as a candidate and was also elected to the committee of management. This shows has he had acquiesced-with what had been done by the society and the Government in the matter of the conduct of the elections. Thus, the omission on the part of respondents to do something required to be done in law or the doing of something which in law they are not permitted to do, had not affected the petitioner prejudicially.
Thus, the omission on the part of respondents to do something required to be done in law or the doing of something which in law they are not permitted to do, had not affected the petitioner prejudicially. In fact, he had gained out of it and still continues to enjoy the gain that had accrued to him. He has not so far relinquished the office to which he was elected. Thus, the moment he participated in the election as a candidate the status that he enjoyed as that of a 'person aggrieved' was lost to him and he ceased to be a person aggrieved. ( 11 ) THE enabling Article 226 reads:" (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of anv of the rights conferred by part III and for any other purpose. " (emphasis supplied) herein the petitioner is not complaining of violation of any of the rights conferred by part III and, therefore, his case would be covered by the latter part i. e. 'for any other purpose. ( 12 ) IN, CALCUTTA GAS COMPANY (PROPRIETARY) LIMITEDvs STATE OF WEST BENGAL the Apex Court while dealing with the question whether the appellant had locus standi to file a petition in the High Court under Article 226 of the Constitution, held as under"article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that the persons other than those claiming fundamental right can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply therunder: but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. . . . . .
The Article in terms does not describe the classes of persons entitled to apply therunder: but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. . . . . . The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in case of some of then writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. " (underlining is mine) in MAHARAJ SINGH va: UTTAR PRADESH, the Apex Court had occasion to deal with the term 'person aggrieved'. Expounding on the concept of a 'person aggrieved' Krishna Iyer, J as he then was, referred to the ever broadening amplitude of the 'legal grievance' and ever expanding horizon necessitating the advent the class action, observed that locus" standi has a larger ambit in current legal semantics calling for supeness in processual adaptations. Having observed thus. Krishna Iyer, J relied on the statement made by the apex Court in Dhabokar's case (1974 1 SCR 306) as the ultimate answer to the query as to who exactly is a 'person aggrieved' which statement runs as follows: "the test is whether the words 'person aggrieved' include a person who has a genuine grievance because an order has been made which prejudicially affects his interests'. " reliance was also placed by Krishna Iyer, J on the interpretation given by Lord Denning in ATTORNEY GENERAL OF THE GAMBIA vs PEIRHA SARR N. thus;". . . The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him : but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. " (emphasis supplied) no doubt the petitioner cannot be wished away as an interloping busy body or a wayfarer but, nonetheless, he must in order to qualify himself to be a 'person aggrieved' must show to the Court that he has a genuine grievance because an order prejudicially affecting his interest had been made. Neither the fact that on the advent of new movements like consumerism, labour unions etc.
Neither the fact that on the advent of new movements like consumerism, labour unions etc. the amplitude of 'legal grievance' is constantly expanding, necessitating the need to effect processual adaptations to meet this burgeoning legal grievance, nor even the fact that the legal dogmas of the quiet past are no longer adequate to assail the social injustice of the stormy present, as Krishna Iyer, J chose to put it in his own inimitable style, would do away with the necessity of applying the 'prejudicially affected test in cases where a person espouses a cause either in his individual interest or in his interest as a trustee. Applying the said test, even subjecting the term 'person aggrieved' to a wider interpretation in that context, I am afraid, the petitioner would not qualify as a 'person aggrieved' as none of his personal or fundamental rights were affected by the acts complained of by him nor was he 'prejudicially affected' "by any of the actions or the inactions of the respondents. The action taken by the respondent does not in any way infringe upon any of petitioner's right, either individual or personal, which he could enforce under Article 226 of the Constitution. ( 13 ) IN the view that I have taken, there is actually no need forme to examine the other question urged by learned Counsel mr. M. Shivappa atieast in so far as W. P. 16363/99 is concerned, but since it becomes relevant in so far as the other Writ Petition is concerned, I take up for consideration the second preliminary objection which is touching the availability of an alternative remedy in the form of a dispute under Section 70 of the Act recourse to which has not been taken by the petitioners in these petitions. ( 14 ) IN W. P. 17356/99 the petitioners have challenged the circularissued as per Annexure-D whereby the society was directed not to insist on the production of identity cards from the members at the time of voting. The other ground urged by the petitioners in w. P. 17356/99 relates to the holding of the election at the Karnataka state Government Employees Association Building at Cubbon Park, bangalore-1.
The other ground urged by the petitioners in w. P. 17356/99 relates to the holding of the election at the Karnataka state Government Employees Association Building at Cubbon Park, bangalore-1. The cause of action for challenging these steps taken by the Registrar of Co-operative Societies arose after the notification was issued fixing the outer limit within which the elections to the various co-operative societies had to be completed. The issuance of the notification and the appointment of the Election Officer for the smooth conduct of the elections signifies the commencement of the election process. As to what is the remedy available to a person aggrieved in the matter of elections after the commencement of the election process is no longer res Integra as there are a number of decision rendered by this Court and the Apex Court on the point. ( 15 ) MR. Shivappa has relied on the Full Bench decision of thiscourt in NANJUNDASWAMY vs ASSISTANT REGISTRAR OF cooperative SOCIETIES, wherein the Full Bench, held: 'the remedy of an election petition is the remedy that is normally available in election disputes. The principles of law is that once the election process is begun it should not be interfered with. The alternative remedy of an election petition is clearly available to the writ petitioner under Section 70 of the Act. " if the petitioners, as members of the society, had any grievance, they had an efficacious remedy under Section 70 of the Act to which they could have had recourse. It is only in cases where no alternative remedy is available or where the remedy available cannot be availed of for reasons beyond the control of the petitioners then the extraordinary jurisdiction of this Court under Article 226 of the Constitution can be set in motion. ( 16 ) IN UMESH SHIVAPPA AMBI AND OTHERS vs ANGAD1shekara BASAPPA AND OTHERS the Apex Court held: "the High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes. In the present case, under Section 70 (2) (C) of the Karnataka Co-operative Societies Act, 1959 any dispute arising in connection with the election of a President, vice-President, Chairman, or Vice-Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the registrar by raising a dispute before him.
In the present case, under Section 70 (2) (C) of the Karnataka Co-operative Societies Act, 1959 any dispute arising in connection with the election of a President, vice-President, Chairman, or Vice-Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the registrar by raising a dispute before him. The Registrar is required to decide in accordance with law. This was, therefore, not a fit case for intervention under Article 226. " (underlining is mine) ( 17 ) HOWEVER, Mr. Rajagopal placed reliance on the, decision ink. Venkatachalam vs A. Swamickan and Another (supra) The decision in my opinion does not in any way advance the case of the petitioner. On the contrary, it lays down a law in consonance with the decisions cited supra which go against the interest of the petitioners. Jn that case, by lapse of time the petitioner therein lost his right to take recourse to the alternative remedy provided and the only recourse he could have had was to Article 226. The action complained of in the said case also went a long way in determining the question whether the petitioner could be permitted to move the Court under article 226. In that case, a fraud was played on the constitution and a person, who was otherwise ineligible to participate in the election, contested the election and was returned to the Legislative Assembly. The situation that obtained therein was such, that if no interference was made under Article 226, as the time prescribed for an election petition under Section 81 of the R. P. Act had lapsed by the time the petitioner came to know of the impersonation done by the successful candidate, a person ineligible to be elected would have been allowed to sit and vote in the Assembly. Taking note of these special circumstances the Court held that, 'high Court's jurisdiction unless barred is wide and covers all violations of the law or constitution' while at the same time taking care to observe 'when recourse cannot be had to other remedies provided by law. ' Heren in the present cases, there was no such impediment for the petitioners to raise election dispute under Section 70 of the Act to the Registrar of cooperative Societies which provides for an efficacious remedy.
' Heren in the present cases, there was no such impediment for the petitioners to raise election dispute under Section 70 of the Act to the Registrar of cooperative Societies which provides for an efficacious remedy. The actions complained of in these Writ Petitions are not Of a nature that if not nullified they would amount to playing fraud on the constitution. Thus, even on the second preliminary objection raised by the learned Counsel for Respondent No. 3 the petitions have to fail. 16. In the result, for the reasons stated above, there is no merit in these petitions and they are, accordingly, dismissed but without any order as to costs. --- *** --- .