B. P. PRABHAKAR v. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF COOPERATION
2001-07-09
M.P.CHINNAPPA
body2001
DigiLaw.ai
CHINNAPPA, J. ( 1 ) THE admitted facts are that the petitioner is the member of the 3rd respondent society which was established with the object to encouraging proper development of agricultural industries among members on co-operation line by introducing the principles of co-operative and joint farming methods with a view to secure the advantages of modern large scale agricultural products by owners or tenant cultivators of the land. The area of operation of the 3rd respondent society consisting of all the villages and towns, in the talks of krishnaraja nagar, hunsur, periyapatna and heggada devanakote taluks of Mysore district. The areas comprising of lands in villages of krishnarajpet taluk excluding the following : (A) the villages with atchukut under the following tanks : krishnarajpet hoshotalu, menasa, bachahalli, haralahalli. Kikkeri, sindaghatta, ballakere, hadanur and seeklanara. (B) the villages with atchukut under pick-ups of narayanadurg thore : (C) the village coming in the hemagiri channel area of krishnarajapet taluk, as per the bye-law Annexure 'a'. It is also an admitted fact that on opening of a sugar factory in nanjangud taluk, Mysore district, the areas of operation of h. d. kote was excluded by notification dated 2. 2. 1999 under which the government has given permission to icl sugars ltd. At malavalli, k. r. pet taluk to purchase the quantified sugarcane required, having regard to the crushing capacity of the factory on establishment of the above said factory. ( 2 ) ACCORDING to Rule 13-a of Karnataka co-operative societies (Amendment) Rule, 1999, the chief executive shall issue to every member of the society an identity card indicating the name of the society full name. Membership number, age and residential address of the member with a recent passport size photo affixed to the card. The respondent No. 5 had written a letter to r-3 on 30. 4. 01 informing the 4th respondent to issue identity cards, whereas the sugar factory has 11,202 members within its jurisdiction. There are 1865 are members belonging to k. r. pet taluk. . , mandya dist,. And they are not supplying sugar cane to the third respondent karkane and their names will have to be deleted from the voter's list as per Annexure c. The petitioners allege that inspite of these facts, laches and irregularities the respondent No. 5 had published the calendar of events to hold election on 25. 5.
. , mandya dist,. And they are not supplying sugar cane to the third respondent karkane and their names will have to be deleted from the voter's list as per Annexure c. The petitioners allege that inspite of these facts, laches and irregularities the respondent No. 5 had published the calendar of events to hold election on 25. 5. 01 to elect the managing committee for the years 2001-02 to 2005-06 for 5 years informing that identification card is compulsory. The petitioner further alleged that the respondent instead of setting right the laches and irregularities on their part, had in a hurried manner commenced elections and published the calendar or events permitting members belonging to h. d. kote taluk and k. r. pet taluk to vote in the election which will have adverse effect on the managing committee since they are not eligible to vote as their area has been excluded from the operation of the Sri srirama sahakara karkhane ltd. His apprehension is that without issuing proper identification cared to all the members, if the election is held only a few members how hold identity cards would dominate the election to elect their own members to the managing committee. Therefore, he has sought for the following reliefs : (i) issue a writ of certiorari or any other appropriate writ, or direction quashing the calender of events issued by the 5th respondent bearing No. Eln SC 1 : 2001-02 dated 25. 4. 2001 (Annexure-D); (ii) issue a writ of mandamus of any other appropriate writ, order or direction : (a) directing the respondents 3 and 4 to delete all the members of the h. d. kote taluk and k. r. pet taluk, from the voters list and direct the respondents 3 and 4 to issue identity cards to all the eligible members of the 3rd respondent; (b) directing the respondents to conduct the elections to the managing committee of the 3rd respondent with the existing by law; (iii) grant such other relief or reliefs as this Hon'ble court deems fit and proper in the facts and circumstances of the case including award of costs of the writ proceedings in the interest of justice and equity. ( 3 ) THIS writ petition was filed originally against respondent 1 to 5. Subsequently as the impleading application came to be allowed by this court, respondents 6 to 16 were brought on record.
( 3 ) THIS writ petition was filed originally against respondent 1 to 5. Subsequently as the impleading application came to be allowed by this court, respondents 6 to 16 were brought on record. The respondents also filed their objections which I have perused. ( 4 ) FROM a perusal of the petition, it is clear that the petitioner has questioned the publication of calendar of events and also the election to be held on 25. 5. 01 on 2 grounds, viz, (1) that sugar factories were opened at nanjangud taluk and k. r. pet taluk are not supplying sugarcane to the r-3 society. Therefore, those members are not eligible to vote in the election and they should have been deleted from the voters' list before the publication of calendar of events. However, this ground was not pressed into service by the learned counsel for the petitioner at the time of arguments. He submitted that liberty may be reserved for the petitioner to urge this ground at the appropriate stage. ( 5 ) ORDERED accordingly. ( 6 ) THEREFORE, the petitioner is questioning the publication of calendar of events, and also the election to be held without compliance of r-13-a of the act. For our ready reference, it is necessary to refer to r-13-a which reads :"the chief executive shall issue to every member of the society an identity card indicating the name of the society, full name, membership number, age and residential address of the member. The recent passport size photo of the member shall also be affixed on the identity card of the society duly signed by him and attested by the chief executive under the seal of the society. "this will have to be read in conjuncture with sub-rule 28 of Rule 14 which reads :"on a member producing the identification slip the presiding officer or polling officer shall issue him a ballot paper bearing the seal of the society and the signature of the presiding officer or polling officer. "therefore, from the reading of these rules, it is clear that the society has to issue the identity cards to the members with all particulars mentioned therein and only on production of identity cards, ballot papers would be issued by the presiding officer or the polling officer so as to enable the member to cast his vote.
"therefore, from the reading of these rules, it is clear that the society has to issue the identity cards to the members with all particulars mentioned therein and only on production of identity cards, ballot papers would be issued by the presiding officer or the polling officer so as to enable the member to cast his vote. As far as this requirement of the provision is concerned, there is no quarrel. As such the petitioner claims that out of 11,202 members, only 200 members have received identity cards. Therefore, the entire election would be a farce as only 20% of the total members would be casting their votes and 80% of the voters will be deprived opportunity to cast their votes. ( 7 ) THE learned counsel further argued that it is the duty of the executive officer to supply identity cards so as to satisfy the requirement of the rules. At this juncture, it is also necessary to mention that an administrator was appointed for a period of six months and thereafter his term was extended by six more months expiring by 25. 5. 01. According to the act and rules framed therein, the term of an administrator could continue only for a maximum period of one year and there is no provision to extend further. Therefore, the election was ordered and the calendar of events were published in the month of march. ( 8 ) THE learned counsel for the petitioner submitted that though the administrator was aware of the Provisions of law, he had fixed the election hurriedly giving only two months time which was inadequate for the society to issue identity cards. Though this Rule was incorporated in the statute in the year 1999 no action was taken. Therefore, he submitted that the election process itself is not proper. That being the case, the election has to be stayed. On the basis of this court by order dated 22. 5. 01 just 3 days prior to the date of election, stayed the election process, as a result of which election was not held. ( 9 ) AT the time of arguments it was brought to the notice of the court that out of 11. 202 members, identity cards were issued to 6,500 and odd members, i. e. more than 50% of the total members of the society.
( 9 ) AT the time of arguments it was brought to the notice of the court that out of 11. 202 members, identity cards were issued to 6,500 and odd members, i. e. more than 50% of the total members of the society. It may also be mentioned here that the notices were issued to individual members informing them the requirement of obtaining identity cards and also the places where the identity cards would be issued. The society also had made arrangements to take photographs of the members and also to issue cards in 9 places as mentioned in annexure-r 7 dated 18. 4. 01. This clearly indicates that s time was running short, they made elaborate arrangements in 9 places to facilitate the members to obtain identity cards. This also was further published in a paper dated 5. 5. 01 as per Annexure 6 for the information of the members. They were specifically made known that without identity cards. They could not cast their votes and they were requested to obtain the identity cards. Annexure 5 is the proforma notice issued to individual members. The petitioner has never averred or pleaded in the petition that the society has not taken any steps to inform the members about the requirement of the identity cards or denied the arrangement made by the society in 9 places through paper publication, individual notices, etc. He also does not say that he did not receive any intimation which prevented him from obtaining the identity card. Therefore, the society has taken necessary steps for issuance of identity cards so as to facilitate all the members to cast their votes in the election. Further other members have not made any grievances. ( 10 ) THE learned counsel for the petitioner has vehemently argued that it is the duty of the society to deliver identity cards. This argument is unacceptable. One can take horse to the water but he cannot make it to drink. The same adage is applicable in this case also. The society cannot compel any one to obtain the identity cards as it is the responsibility of the members who are interested in the welfare of the society to elect their nominees to the board of management; to come forward and obtain identity cards for which necessary arrangements were made by the society.
The society cannot compel any one to obtain the identity cards as it is the responsibility of the members who are interested in the welfare of the society to elect their nominees to the board of management; to come forward and obtain identity cards for which necessary arrangements were made by the society. Thus, more than 50% of the members have obtained the cards. If others have not obtained the cards, one cannot find fault with the administrator of the society in not pressing upon them to take the identity cards. Therefore, I am of the firm view that the requirement of r-13-a has been complied with to the full extent asfaras the society is concerned and that was not ground to cancel the calendar of events published. However in this case, the election was postponed for the reasons stated by way of the stay order granted by this court. The fact remains that the election ought to be held. ( 11 ) THE question is whether the election ought to be held from the stage at which it was stopped or interrupted or whether the fresh calendar of events will have to be published. ( 12 ) VIDE Annexure-C dated 30. 4. 01 letter was issued by the asst. Commissioner to the administrator informing among other things that on the said date, the cards were issued only to 200 members. But however, the respondents argued which is not confronted by the counsel for the petitioner, that as on 20. 5. 01, 6,581 members had obtained photo identity cards. Out of 11,180 members almost 10% persons are dead and therefore, the effective membership is not more than 10. 000. Thus more than 65% of the total number of voters have obtained identity cards with photographs. The government has passed an order to hold election on 21. 3. 01. On the basis of it, action was taken and returning officer was appointed. From 10. 5. 01 to 17. 5. 01 the nominations were filed' 118. 5. 01 was the date fixed for nominating the members as per Rule 14 (6) of the rules. Scrutiny was fixed and held on 19. 5. 01. The applications were accepted on 19. 5. 01; withdrawal of nominations was on 20. 5. 01; list was published on 20. 5. 01; symbols to the contesting candidates were given on 21. 5.
5. 01 was the date fixed for nominating the members as per Rule 14 (6) of the rules. Scrutiny was fixed and held on 19. 5. 01. The applications were accepted on 19. 5. 01; withdrawal of nominations was on 20. 5. 01; list was published on 20. 5. 01; symbols to the contesting candidates were given on 21. 5. 01; election was to be held on 25. 5. 01. All these formalities were observed for conducting elections. The petitioner obtained stay order on 22. 5. 01. ( 13 ) THE learned counsel for the respondents submitted that if fcr any reason the entire election process has to be re-started it will cause injustice to the candidate who has already been elected unopposed and the nomination papers of those candidates which were accepted would be yet again to continue the process. That will lead to unnecessary complication. Therefore, he submitted that in normal course the election process ought not to be stayed and even if it is stayed for any reason. To re-commence it from the state at which it was interrupted. To substantiate his argument he placed reliance on two decisions, rendered by this court in Jindappa V. State of karnataka, ILR 1999 kar 339, where it is held that election was postponed on untenable grounds. Direction was given to conduct elections from the stage from where the election was stopped. Similarly, in k. Channaiah and others V. State of Karnataka and others, ILR 2000 kar 2572. The court held that all the pronouncements of courts lead to one irresistible conclusion that when once the election process has commenced it must continue in accordance with the calender of events. If the election process is interrupted by an interim order of court or by an authority and ultimately if it is found that such interruption was not called for then the election process shall continue in accordance with the calender of events originally announced and shall take off from the time when the process was interrupted. ( 14 ) HOWEVER, the learned counsel for the petitioner submitted that as on the date of election not even 20% of the electorates had obtained identity cards and without identity cards, they were not allowed to cast their votes. Therefore, the election process was stayed by this court. Under the extraordinary circumstances.
( 14 ) HOWEVER, the learned counsel for the petitioner submitted that as on the date of election not even 20% of the electorates had obtained identity cards and without identity cards, they were not allowed to cast their votes. Therefore, the election process was stayed by this court. Under the extraordinary circumstances. The court ought to direct the authorities to issue calendar of events afresh and start the election process. ( 15 ) IN support of his argument. He placed reliance on a decision of the full bench of this court wherein it is held :" (I) the remedy of an election petition is the remedy that is normally available in election disputes. The principle 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. (II) there is really no divergence of opinion between the judgments is maruthis case. Ilr 1990 kar 1378, and in gurumallappa's case, ILR 1991 kar 557, moruthis case is an illustration of the principle that the high court has the power to interfere in election disputes and shall exercise that power only in the most extraordinary circumstances. The observation of the division bench that the provision for filing an election petition was not an efficacious remedy, and a writ in the nature of mandamus to hold a fresh election could be issued must be read in the light of those extraordinary circumstances. All that was meant to be conveyed was that in those extraordinary circumstances the provision for filing an election petition would not do justice. " he also placed reliance on decision rendered by the division bench of this court in l. Shivanna V. State of karnataka, ILR 1988 kar 2121, wherein the court has observed that once it is held that the legality of electoral rolls can be subject matter of writ petition, its maintainability does not depend on the date of its presentation or its hearing. Therefore, whether it is presented before the date of notification calling upon the constituency to elect or thereafter, is immaterial. It is for the high court to decide as to whether a writ petition presented just before or after the issue of notification calling upon the constituency to elect should be entertained or not.
Therefore, whether it is presented before the date of notification calling upon the constituency to elect or thereafter, is immaterial. It is for the high court to decide as to whether a writ petition presented just before or after the issue of notification calling upon the constituency to elect should be entertained or not. In doing so, the high court must take into account all the weighty reasons assigned in the various judgment of the Supreme Court regarding the bar created by article 329 (b) on the jurisdiction of all courts in matters relating to election to the parliament and state legislature. Therefore, the entertaining of a petition should not have the result of staying or postponing the election. The court has also no jurisdiction to make any interim or final order which has the effect of upsetting the calendar of events. Therefore, it is only in cases where the court finds that an illegality committed in the preparation of electoral rolls is such as would justify the interference and also finds that it is practicable to give relief. The petition can be entertained and decided. ( 16 ) THEIR lordships of the Supreme Court in mohinder singh V. Chief Commissioner, AIR 1978 SC 851 , after considering the Provisions of Section 80, 100 and 170 of the representation of peoples act following the judgment of the Supreme Court reported in, AIR 1952 SC 69. Under article 226 of the Constitution held that it will be within the power of the high court, as the election court, to give all appropriate reliefs to do complete Justice between the parties. In doing so it will be open to the high court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the act. It is further held :"the catch-all jurisdiction under article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie facie purpose of such a re-poll is to restore a detailed poll process and to complete in through the salvationary effort of a re-poll, writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by article 329 (b ).
For, the prima facie facie purpose of such a re-poll is to restore a detailed poll process and to complete in through the salvationary effort of a re-poll, writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by article 329 (b ). "on the basis of these decisions, the learned counsel for the petitioner submitted that since majority of the voters were not given identity cards, some of the candidates who desire to contest the election could not do so as identification cards were not given to them. This argument is unsustainable in view of the fact that sub-rule (28) of Rule 14 mandates that; to obtain ballot paper, one must produce the identification card. There was no prohibition for a member to file nomination paper and that does not require any identification card. Further, no member has come forward to say that his nomination paper was rejected on that ground or that he was prevented from filing nomination paper in the election for want of identification card. Therefore, this argument is without any force. Those who desire to contest in the election had filed nomination papers and therefore, nomination papers after scrutiny were accepted. Even symbols were allotted to them and when the election process was on the verge of completion this writ petition came to be filed interrupting the election. ( 17 ) THE petitioner also has not placed correct facts before this court which were existing as on the date of filing this petition. He mentioned that only 200 members obtained identification cards on the basis of the letter of the assistant commissioner dated 30. 4. 01. According to that letter, as on 17. 4. 01 only 200 members have obtained the cards. Even thereafter, sufficient time was available for the voters to obtain the cards till the election date, i. e. more than 35 days were available. Under the circumstances the argument of the learned counsel for the respondent is reasonable and probable tht the party which has no hope of succeeding in the election use their influence with the officers and get a report and Annexure-C is one such letter sent intimating that as on 17. 4. 01 only 2000 cards were issued on other untenable reasons for postponing of the election.
4. 01 only 2000 cards were issued on other untenable reasons for postponing of the election. Consequent to this letter such order ws obtained totally disrupting the election. ( 18 ) THEREFORE, I am of the considered view that the election process need not be re-commenced by issuance of calendar of events. On the other hand the election shall be continued from the stage at which it was interrupted. However, with a view to give an opportunity to the voters who had not collected identification cards, the election be postponed for a period of two months with a direction to the society to issue paper publication and also individual notice to these who have not obtained the cards informing them to obtain the cards within the stipulated time and to participate in the election. The manner in which it has to be published is left to the discretion of the administrator of the society. However, the election shall be concluded within two months from this date without fail and it shall start only from the stage at which it was interrupted. With these observations, the petition stands disposed of. --- *** --- .