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2015 DIGILAW 1042 (KAR)

Jayamuthu v. State Election Commission for Co-operation

2015-09-03

RAVI V.MALIMATH

body2015
ORDER : Ravi V. Malimath, J. 1. The case of the petitioner is that he has been delegated by respondent No. 5 to vote, contest and participate in the elections to respondent No. 3-Society. The respondent No. 5 has sent the details pertaining to the delegation. The final voters list was announced by respondent No. 1. The name of the respondent No. 3 - Society was also mentioned therein. 2. At that stage, respondent No. 6 filed a complaint before the respondent No. 2 stating that respondent No. 5 - Society is not eligible to contest in the election, as the said Society is a new society and they cannot be classified in the 'B' Category and the audit report of the year 2012-13 has to be considered. 3. Thereafter the Returning Officer sought clarification from the first respondent with regard to the same. Notice was issued to the petitioner as well as respondent No. 5. The written arguments were also filed by the petitioner. Thereafter, respondent No. 1 passed an order holding that the Societies which have conducted the audit for the Year 2013-14 can furnish the same etc. Therefore, the controversy with regard to the Financial Year was sorted out. 4. On the date of scrutiny, respondent No. 6 again pressed for his complaint. The respondent No. 3 heard the objections. Respondent No. 5 was represented by an Advocate. The petitioner too was represented by an Advocate. 5. On hearing the arguments, the impugned order at Annexure-F was passed and the nomination paper of the petitioner was rejected. Aggrieved by the same, the present petition is filed. 6. Sri Jayakumar, S. Patil, learned Senior Counsel appearing on behalf of the petitioner's counsel contends that the impugned order is bad in law and liable to be set aside. He points out various errors committed by the respondents in rejecting the nomination of the petitioner. He relied upon various provisions of Karnataka Cooperative Societies Act in support of his plea. He therefore contends that the Returning Officer having interfered in the election process could not have passed the impugned order. 7. On maintainability, by relying on the judgment of the Division Bench of this Court reported in ILR (KAR)-1991-11-40 in the case of L. Ramakrishnappa Vs. He therefore contends that the Returning Officer having interfered in the election process could not have passed the impugned order. 7. On maintainability, by relying on the judgment of the Division Bench of this Court reported in ILR (KAR)-1991-11-40 in the case of L. Ramakrishnappa Vs. Presiding Officer and Assistant Registrar of Cooperative Societies, Bangalore, he contends that there is no bar for a Writ Court to entertain a matter pertaining to an election. Therefore, this court has ample power to interfere with the same. 8. Reliance is also placed on the full Bench judgment of this Court in the case of Nanjunda Swamy Vs. Assistant Registrar of Societies reported in LAWS (KAR)-1992-2-30, to support the same issue. 9. Reliance is placed on AIR 1966 SC 81 (1) to contend that the High Court has a duty to reach injustice where it is found. Therefore, injustice having occurred in this case, the writ court should interfere with the same. Hence, he pleads that the petition be allowed. 10. On the other hand, Sri B.V. Acharya, learned Senior Counsel appearing on behalf of the counsel representing respondent No. 6 defends the impugned order. He contends that there is no error committed in passing the impugned order. That the same has been passed in accordance with law. That the requirement in terms of the Cooperative Societies Act and Rules have been taken into consideration, the authority was of the view that the petitioner is not entitled to vote or contest. Therefore, no fault can be found with the impugned order. 11. He further contends that the writ court has always restrained itself from interfering in matters wherein calendar of events has been issued. That the subject matter of the dispute could very well be agitated under Section-70 of the Act. Therefore, interference by this court is uncalled for. 12. In support of his case, he relies on a judgment of the Hon'ble Supreme court reported in (1988) SCC 572 in the case of Muthusamy Vs. K. Natarajan and Others, as well as the judgment of the Full bench decision relied by the petitioner's counsel. The judgment of the Division Bench reported in ILR 90 KAR 1378 in the case of Maruthi Vs. State of Karnataka. He further contends that by considering all these issues, even the Division Bench of this Court by order dated 04.08.2015 passed in W.A. Nos. The judgment of the Division Bench reported in ILR 90 KAR 1378 in the case of Maruthi Vs. State of Karnataka. He further contends that by considering all these issues, even the Division Bench of this Court by order dated 04.08.2015 passed in W.A. Nos. 2383-2384/2015 A/w. W.A. No. 2400/2015, have declined to interfere in a matter pertaining to orders being passed subsequent to the issuance of the calendar of events. Hence, he pleads that the petition be allowed. 13. Heard learned counsels. 14. So far as maintainability is concerned, petitioner's counsel by relying upon the aforesaid judgments contends that there is no bar for a Writ Court to interfere in matters pertaining to elections. That the writ court has power to interfere and stop any illegality. That the judgment reported in AIR 1966 SC 81 (1) narrates the very effect. Whenever an injustice is found, the Writ Court should not hesitate but interfere. The exercise of power by a writ Court in matters pertaining to election, is well-defined, as narrated in the aforesaid judgments. The Full Bench of this Court have held that only if there is extraordinary circumstances could a writ Court interfere, in a matter where calendar of events has already been issued. 15. It is needless to state that there can be no fetter on the Writ Court to issue a writ whenever injustice is found. But this power is circumscribed by various judgments of this Court as well as the Hon'ble Supreme Court in matters pertaining to elections. Time and again, they have held that an election petition is an appropriate remedy to address the grievance of the petitioners. Once the calendar of events has been issued, the court should decline from interfering, exercising its discretion/jurisdiction. The interference by a writ Court in matters pertaining to election is well-defined as narrated in the aforesaid judgments. The Full Bench of this Court have held that only if there is extraordinary circumstances could a writ Court interfere, in a matter where calendar of events has already been issued. In so holding, an example of the extraordinary circumstance was also narrated in that case which was considered by the Hon'ble Full Bench. The calendar of events was issued seven years earlier. Three of the candidates who had filed their nomination/s pursuant thereto, had died. Therefore, the court was of the view that the same constitutes an extraordinary circumstance. In so holding, an example of the extraordinary circumstance was also narrated in that case which was considered by the Hon'ble Full Bench. The calendar of events was issued seven years earlier. Three of the candidates who had filed their nomination/s pursuant thereto, had died. Therefore, the court was of the view that the same constitutes an extraordinary circumstance. 16. The present petition does not attract such an extraordinary reason for interference by a writ court. If the contentions are to be accepted, the same would amount to an error or an erroneous order being passed by the concerned authority. It does not mean under any circumstance that it is an extraordinary circumstance. Therefore, the window of opportunity is that interference by the Writ court is only in a matter of extraordinary circumstance. I do not find any such extraordinary circumstance exists in the present case. The petitioner, always has a remedy of filing an election petition in furtherance of his grievance. The Division Bench of this court as narrated hereinabove also has recently on 04.08.2015 taken the very same view. Under these circumstances, I do not find any good ground to interfere in the impugned order. Consequently the writ petition requires to be rejected. 17. The petitioner's counsel contends that by the interim order dated 22-5-2014 granted by this Court, the Returning Officer was directed to include the name of the petitioner as a contesting candidate. But however, the result of the election would be subject to the result of the writ petition. Since the petitioner has been elected, no interference is called for. 18. It is presently contended that the petitioner having contested the election, has been elected as the Director of R4 and therefore, in view of the dismissal of the writ petition, the final order also requires to be modified in view of the interim order granted. 19. Apparently, in the election, the petitioner was allowed to contest election in terms of the interim order. It is needless to say that the interim order is always granted in aid of the final order. The final order herein is the dismissal of the writ petition. Therefore, necessarily the interim order would have to be dissolved. There is no scope for modifying the said order under any circumstance whatsoever. It is needless to say that the interim order is always granted in aid of the final order. The final order herein is the dismissal of the writ petition. Therefore, necessarily the interim order would have to be dissolved. There is no scope for modifying the said order under any circumstance whatsoever. Since the petitioner was allowed to contest in the election in terms of the order dated 22-5-2014, since the petition is being dismissed, it is only just and appropriate that all the proceedings conducted by the respondents subsequent to 22-5-2014 requires to be quashed. The election process as on 22.05.2014 shall continue. Hence, the following order:- ORDER The writ petition is dismissed. All further proceedings and actions subsequent to 22-5-2014, to this date, are quashed. The respondents are directed to continue with the election process from 22-5-2014 onwards. Rule discharged.