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2020 DIGILAW 1435 (KAR)

Muniswamy K v. State Of Karnataka

2020-07-20

ABHAY S.OKA, M.NAGAPRASANNA

body2020
JUDGMENT Abhay S Oka, C.J. - Heard the learned Senior Counsel appearing for the appellants, the learned Additional Government Advocate appearing for first to third respondents, the learned counsel appearing for fourth to sixth respondents and the learned counsel appearing for eighth to eleventh respondents. Seventh respondent being the Election Officer is a formal party. 2. The dispute concerns the fourth respondent which is a Society registered under the Karnataka Societies Registration Act, 1960 (for short 'the said Act'). On 27th January 2017, an order was made by the first respondent appointing the second respondent as the Administrator of the fourth respondent in exercise of the power under Section 27A of the said Act. On 28th January 2017, a calendar of events was published by the Administrator for holding the election of the Board of Directors of the said Society. As per the said calendar, election was to be held to elect the Board of Directors for five years on 05th March 2017. It must be noted here that on 23rd February 2019, an order was made by the second respondent which records that the election to be held on 5th March 2017 was subject to the order in writ petition Nos.4975-4977/2017. There are further developments which are relevant and which need to be noted. On 3rd February 2017, writ petition Nos.4975-4977/2017 filed by the present appellants was placed before the learned Single Judge. On that day, notice was issued and an interim order was issued to stay the impugned order of appointment of the Administrator provided, the Administrator has not taken charge. There is a communication issued on 03rd February 2017 by the second respondent informing that he has taken over the charge on 1st February 2017 as the Administrator of the said Society and he stated that the calendar of events declaring that election to be held on 5th March 2017 stands cancelled. For the sake of completion, we may note here that the said writ petition Nos.4975- 4977/2017 was filed by the present appellants challenging the order of appointment of Administrator passed on 27th January 2017 and for issuing a writ of mandamus for holding the election in terms of calendar of events published on 28th January 2017. The said writ petition was withdrawn under the order dated 01st February 2019 by the appellants. The said writ petition was withdrawn under the order dated 01st February 2019 by the appellants. At this stage we may also refer to one more writ petition filed in this Court which is writ petition Nos.5633-5635/2017. The said writ petition was filed by eighth to tenth respondents and on 07th February 2017, the learned Single Judge passed the order in the said writ petition recording that the election if any, held pursuant to the notification dated 28th January 2017, will be subject to the result of the writ petition. The said writ petition was disposed of by the learned Single Judge by the order dated 1st February 2018, recording that taking into consideration the nature of writ petition, there is no need to keep the petition pending as the contentions which were raised by the petitioners could be adjudicated in writ petition Nos.4975-4977/2017 and writ petition Nos.57967-57970/2016. 3. There is one more event which is relevant to be noticed, before we come to the impugned order. It is about the endorsement dated 2nd May 2017 which has reference to the letter dated 16th March 2017 submitted by the Secretary of the said Society in accordance with Section 13 of the said Act. The Deputy Registrar of the Co-operative Society by the said endorsement dated 02nd May 2017 held that the appointment of the Election Officer has been cancelled and the issue regarding appointment of the Administrator of the said Society was pending before the Court. The Deputy Registrar also referred to FIR registered. Therefore, the Deputy Registrar observed that at that stage, there was no provision for according approval to the list of executive committee. 4. The impugned order has been passed by the learned Single Judge on a petition filed by eighth to eleventh respondents. The first challenge in the writ petition filed by the said respondents was to the calendar of events dated 28th January 2017. In fact, a prayer was made for quashing firstly, the calendar of events dated 28th January 2017, secondly, the election proceedings dated 05th March 2017 and thirdly, the endorsement dated 23rd February 2019. The learned Single Judge by the impugned judgment and order dated 11th March 2020 held that the lis brought before the Court can be resolved by directing the competent authority to hold a fresh election of the said Society (fourth respondent). The learned Single Judge by the impugned judgment and order dated 11th March 2020 held that the lis brought before the Court can be resolved by directing the competent authority to hold a fresh election of the said Society (fourth respondent). Secondly, he observed that it is necessary to direct holding of a fresh election because of the non-approval of the list of elected members submitted consequent to election held on 05th March 2017. He observed that the said non-approval has not been questioned by the aggrieved persons. Therefore, the learned Single Judge proceeded to direct the second respondent to appoint an Election Officer to conduct the election in respect to the fourth respondent within a period of three months. 5. The learned Senior Counsel appearing for the appellants submitted that the prayer in the writ petition filed by the eighth to eleventh respondents was for quashing the election proceedings dated 05th March 2017 and the learned Single Judge without quashing the election held on 05th March 2017 erroneously directed holding of a fresh election. He submitted that even the endorsement dated 23rd February 2019 directing holding of the election was not set aside by the learned Single Judge. He submitted that there is an endorsement dated 12th October 2019 which can be termed as approval of the election dated 5th March 2017. 6. The learned counsel appearing for eighth to eleventh respondents as well as the learned counsel appearing for fourth to sixth respondents supported the impugned order. Firstly, it is submitted that on 5th March 2017 when the alleged election was held the Administrator was already in charge as he had taken over the charge on 1st February 2017. Their contention is that the Administrator by an order dated 3rd February 2017 had even cancelled the appointment of the Election Officer for holding the election on 05th March 2017. They pointed out that the appointment of the Administrator was stayed by the learned Single Judge on 3rd February 2017 by clearly observing that the stay will operate only if the Administrator had not taken over the charge. It is submitted that as the Administrator had taken over the charge, there was no question of holding election on 5th March 2017 as the appointment of the Election Officer was cancelled by the Administrator. It is submitted that as the Administrator had taken over the charge, there was no question of holding election on 5th March 2017 as the appointment of the Election Officer was cancelled by the Administrator. They also pointed out that writ petition Nos.4975-4977/2017 filed by the present appellants was withdrawn on 01st February 2019 though there was a specific challenge to the order appointing the Administrator. They urged that the order of appointment of the Administrator was extended and in fact was in force on 1st February 2019, when the petition was withdrawn. Our attention was invited to the provision in Section 13 of the said Act. It was submitted that by a specific order, the Deputy Registrar did not accept the return filed by the elected body on the basis of the election held on 5th March 2017 on the ground that election could not have been held. They invited our attention to the endorsement dated 2nd May 2017. 7. We have given careful consideration to the submissions and perused the prayers made in the writ petition filed by eighth to eleventh respondents. The specific challenge in the writ petition was to the election held on 5th March 2017, which was conducted by the fifth respondent in the writ petition who was appointed as the Election Officer. Perusal of the petition and the grounds therein will show that a contention was specifically raised in the writ petition that the appointment of the Election Officer was cancelled by the Administrator on 3rd February 2017 and therefore, the election purportedly held was void ab initio. Second ground was that, the second respondent in the writ petition had no authority to go into the genuineness of the election held on 05th March 2017 as the election was not approved by the State Government. Third challenge was on the ground that the election was not conducted as per the bye-laws of the Society and prior to the election, there was no public notice and all the voters of the Society were not notified. It was also contended that appointment of the Administrator was in force when the election was conducted. 8. Third challenge was on the ground that the election was not conducted as per the bye-laws of the Society and prior to the election, there was no public notice and all the voters of the Society were not notified. It was also contended that appointment of the Administrator was in force when the election was conducted. 8. Now coming to the impugned order, from paragraph 2, it appears that one of the contentions raised by the learned counsel appearing for eighth to eleventh respondents was that the election held on 5th March 2017 was not approved by the competent authority. The same was the contention raised by the High Court Government Pleader. The reasons recorded by the learned Single Judge while passing the impugned order are only in paragraph 5. The directions issued by the learned Single Judge are in paragraph 6. For the sake of convenience, we are reproducing paragraphs 5 and 6 of the impugned order, which read thus: "5. Having heard the learned counsels and on perusing the petition papers, this Court is of the considered opinion that the lis brought before this Court could be resolved by directing the competent authority to hold a fresh election for respondent No.4 - Sangha. Even more so, because the nonapproval of the list of elected members submitted consequent to election held on 05.03.2017 has not been questioned by the aggrieved persons. It is also not known as to how the District Registrar could pass another order contrary to the earlier order. 6. In that view of the matter, this writ petition stands disposed of while directing respondent No.2 - The District Registrar of Co-operative Societies to appoint an Election Officer to conduct the election with respect to respondent No.4 - Sangha, within a period of three months from today." (Underline supplied) 9. As can be seen from paragraph 5, the first reason recorded by the learned Single Judge was that lis brought before the Court could be resolved by directing the competent authority to hold a fresh election. With greatest respect to the learned Single Judge, this approach may not be correct. The learned Single Judge was called upon to decide the issue of legality and validity of the election held on 05th March 2017. With greatest respect to the learned Single Judge, this approach may not be correct. The learned Single Judge was called upon to decide the issue of legality and validity of the election held on 05th March 2017. Without going into the issue of the validity of the election and without recording a finding regarding any illegality associated with the election, the learned Single Judge could not have directed holding of a fresh election. The only other ground recorded in paragraph 5 is that the non-approval of the list of elected members submitted consequent to election held on 05th March 2017, has not been questioned by the aggrieved persons. About the subsequent order conveying approval on which the reliance is placed by the appellants, the learned Single Judge has observed that it is also not known as to how the Registrar could pass another order contrary to the earlier order. Thus, the learned Single Judge relied upon the order made by the Deputy Registrar on the basis of the return submitted under Section 13 of the said Act. The order of the Deputy Registrar is of 2nd May 2017. 10. We have perused Section 13 of the said Act. Section 13 of the said Act contemplates filing of balance sheet and annual list of governing body with the Registrar within the time frame provided therein. On the face of the Section, it is apparent that it does not confer a power on the Deputy Registrar to hold an inquiry on the issue of legality and validity of the elections. There is no power conferred on the Registrar under Section 13 of the said Act to decide on the basis of the list of governing body, whether the governing body was lawfully elected. Therefore, the learned Single Judge could not have read the endorsement dated 2nd May 2017 issued by the Deputy Registrar as an order of adjudication upon the legality and validity of the election held on 5th March 2017. Notwithstanding the said endorsement, even the eighth to eleventh respondents filed the writ petition before the learned Single Judge questioning the validity of the election held on 5th March 2017. Notwithstanding the said endorsement, even the eighth to eleventh respondents filed the writ petition before the learned Single Judge questioning the validity of the election held on 5th March 2017. If according to the case of the eighth to eleventh respondents, the said endorsement constituted an adjudication on the issue of the legality and validity of the election held on 05th March 2017, there was no occasion for them to file the writ petition. 11. The real issue before the learned Single Judge was whether the election held on 05th March 2017 was legal and valid. We may note here that the appointment of the Administrator was challenged by the present appellants by filing a writ petition in which interim order was passed on 03rd February 2017 granting stay to the appointment of the Administrator provided that Administrator had not taken over the charge. The letter dated 03rd February 2017 addressed by the Administrator to the Election Officer records that he had taken over charge on 01st February 2017. By the said letter, he purported to cancel the appointment of the Election Officer. In fact, in the writ petition filed by the eighth to eleventh respondents, a specific ground has been taken that when the election was held on 05th March 2017, the appointment of the Election Officer was already cancelled. They relied upon the said letter dated 3rd February 2017 addressed by the Administrator. 12. Therefore, it was necessary for the learned Single Judge to have gone into the question whether on 3rd February 2017 when interim order was passed, the Administrator had already assumed the charge. If it was established that the Administrator had assumed charge prior to the passing of the interim order dated 03rd February 2017, then the Administrator could have passed the order dated 3rd February 2017 cancelling the appointment of the Election Officer. But if the Administrator had not be taken charge before the interim order was passed on 3rd February 2017, the Administrator could not have cancelled the appointment of the Election Officer as well as the schedule of the election. This very relevant issue is not gone into by the learned Single Judge at all. Even otherwise, the challenge to the validity of the election held on 05th March 2017 was not decided by the impugned order. 13. This very relevant issue is not gone into by the learned Single Judge at all. Even otherwise, the challenge to the validity of the election held on 05th March 2017 was not decided by the impugned order. 13. As stated earlier, the learned Single Judge was impressed by the non-approval of the list by the Deputy Registrar and secondly, he was of the view that appropriate way of deciding the lis was to order holding of a fresh election. As held by us earlier, the so called non-approval under Section 13 of the said Act cannot be termed as an adjudication on the legality and validity of the election held on 05th March 2017. When there was a specific challenge to the legality and validity of the election held on 5th March 2017, without dealing with the issue of legality and validity, the learned Single Judge could not have directed holding of a fresh election. The said order could have been justified provided the learned Single Judge had recorded a clear finding about the illegality of the election held on 5th march 2017. 14. Therefore, the real issue which arose before the learned Single Judge was not addressed. The adjudication on the real issue regarding legality and validity of the election held on 5th March 2017 will require consideration of certain factual aspects which are borne out from the record. We have no option but to set aside the impugned order and direct the learned Single Judge to consider the writ petition afresh by deciding the issue of legality and validity of the election held on 5th March 2017. If we decide this issue for the first time in an appeal, right to appeal of one of the two parties will be affected. 15. If we decide this issue for the first time in an appeal, right to appeal of one of the two parties will be affected. 15. Therefore, we pass the following order: ORDER a. The impugned order dated 11th March 2020 is hereby set aside and writ petition No.12131/2019 is remanded to the learned Single Judge; b. Considering the fact that election is of the year 2017 which is under challenge, we request the learned Single Judge to give necessary priority for disposal of the writ petition; c. We grant liberty to the parties to move the Court for fixing a date of hearing in the writ petition after the present lock down is withdrawn; d. We make it clear that except for the findings which we have recorded in this judgment and order, all issues concerning the legality and validity of the election held on 05th March 2017 are expressly kept open to be decided by the learned Single Judge; e. The appeal is partly allowed with the above terms; f. The pending applications do not survive and the same are disposed of.