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2022 DIGILAW 984 (KAR)

N. H. Sripad Rao v. State of Karnataka

2022-07-29

ALOK ARADHE, S.VISHWAJITH SHETTY

body2022
JUDGMENT 1. These appeals arise out of orders dated 28.04.2022 passed by learned Single Judge in W.P.No.233/2022 and W.P.243/2022. Since, common issue arise for consideration in these appeals, they were heard analogously and are being decided by this common judgment. For the facility of reference, we shall advert to the facts involved in these appeals separately. 2. The respondent No.12 in W.A.No.420/2022 was elected Director of Kanchugaranahalli Milk Products Society (hereinafter referred to as 'the primary society' for short) . The aforesaid respondent is also an elected Director of respondent No.4, Shimoga, Davanagere and Chitradurga District Cooperative Milk Producers Union, Shimoga (hereinafter referred to as 'Milk Union' for short), which is sponsored by primary society. The respondent No.12 is also Vice President of the Milk Union. A notice dated 27.12.2021 was issued to aforesaid respondent fixing the date of appearance as 30.12.2021, which was affixed on the notice board of primary society at 8.30 p.m. 3. The respondent No.12 appeared on 30.12.2021 and sought time. However, the case was posted for 31.12.2021. On 31.12.2021, the petitioner filed an application seeking to engage the services of an Advocate. However, an order of disqualification dated 31.12.2021 was passed. The said order was neither communicated to respondent No.12 nor the primary society but the same was communicated to Managing Director of Milk Union. 4. The respondent No.12 challenged the order dated 31.12.2021 in a writ petition viz., W.P.No.243/2022. The respondent No.12 also sought a writ of certiorari for quashing the minutes of meeting dated 01.01.2022, wherein appellant was elected as President of the Milk Union. The said writ petition preferred by respondent No.12 was allowed by an order dated 28.04.2022 and the impugned order dated 31.12.2021 passed by the Assistant Registrar, Cooperative Societies disqualifying respondent No.12 was quashed and election of the appellant as President to the Milk Union was quashed. The learned Single Judge further directed that election to the post of Milk Union shall be conducted expeditiously in accordance with law. In the aforesaid factual background, W.A.No.420/2022 has been filed. 5. The respondent No.13 in W.A.No.421/2022 was elected as a Director of Hirejambur Milk Producer Co-operative Society, Hirejumbu Post, Shikaipur Taluk Shimoga District (hereinafter referred to as 'the primary society' for short). Shimvaogga, Davanagere and Chitradurga District Cooperative Milk Producers Union, Shimoga (hereinafter referred to as 'Milk Union' for short), which is sponsored by primary society. 5. The respondent No.13 in W.A.No.421/2022 was elected as a Director of Hirejambur Milk Producer Co-operative Society, Hirejumbu Post, Shikaipur Taluk Shimoga District (hereinafter referred to as 'the primary society' for short). Shimvaogga, Davanagere and Chitradurga District Cooperative Milk Producers Union, Shimoga (hereinafter referred to as 'Milk Union' for short), which is sponsored by primary society. The office of primary society fell vacant and election notice was issued on 04.11.2021 by which election was scheduled to be held on 20.11.2021. 6. The respondent No.13 along with one other Director filed W.P.No.20470/2021, in which an order of nomination of a person as Director was challenged. In the said writ petition, an interim order was granted on 18.11.2021. An order of disqualification was passed by the Assistant Registrar on 28.04.2017, which was challenged by the appellant in W.P.No.21342/2017, in which an ad interim order was granted. The aforesaid writ petition was subsequently dismissed by an order dated 17.11.2021 on the ground of availability of alternative remedy. 7. The Returning Officer by a communication dated 17.11.2011 sought a clarification whether the election to the post of President could be held as code of conduct was issued to holding the election to the Legislative council. The authority on the next date i.e., on 18.11.2021 clarified that code of conduct would not be an impediment in holding the election of President of office of Milk Union. Again on 18.11.2021 itself the Election Officer again sought a clarification with regard to postponement of election on the ground that elections to the post of Kannada Sahitya Parishad and Vokkaligara Sangha was likely to be held. The authority by a communication dated 19.11.2021 informed that in case, law and order situation arises, action can be taken under Rule 14H of Karnataka Cooperative Societies Rules. 8. The Returning Officer passed an order on 19.11.2021 postponing the election. Thereafter, the appellant filed an appeal against order of his disqualification, in which ad interim stay was granted. The respondent No.13 was disqualified by an order dated 31.12.2021 on the ground that reserve fund contemplated under Section 47(2) of the Karnataka Cooperative Societies Act, (hereinafter referred to as 'the Act' for short) was not kept in separate deposit. Thereafter, the elections were held on 01.01.2012 in which the appellant was elected. The respondent No.13 was disqualified by an order dated 31.12.2021 on the ground that reserve fund contemplated under Section 47(2) of the Karnataka Cooperative Societies Act, (hereinafter referred to as 'the Act' for short) was not kept in separate deposit. Thereafter, the elections were held on 01.01.2012 in which the appellant was elected. The respondent No.13 filed W.P.No.233/2022, in which the order of disqualification and the election of appellant as President of Milk Union vide resolution dated 01.01.2022 was assailed. The learned Single Judge further directed that election to the post of Milk Union shall be conducted expeditiously in accordance with law. In the aforesaid factual background, W.A.No.421/2022 has been filed. 9. Learned Senior counsel for the appellants submitted that the learned Single Judge grossly erred in entertaining the writ petition and in not relegating the respondent Nos.12 and 13 to the alternative remedy provided under the Act. It is further submitted that learned Single Judge has not assailed any reason to set aside the election of the appellants. In support of aforesaid submissions, reliance has been placed on decisions in 'Jayamuthu vs. State Election Commision Fro Co-Opearation, Karnataka State Co-Operative Housing federation and Ors., ILR 2018 KAR 3671, 'Nanjundaswamy vs. Assistant Registrar Of Co-Operative Societies', ILR 1992 KAR 979, 'K. Bhopal Vs. Joint Registrar Of Cooperative Societies & Ors., W.A.No.6444/2017. 10. On the other hand learned Senior counsel for respondent Nos.12 and 13 submitted that alternative remedy is not an efficacious remedy in the facts and circumstances of the case. It is further submitted that no opportunity to respondent No.12 was afforded before passing an order of disqualification. It is further submitted that the action for disqualification was taken in hot haste and for extraneous considerations. It is also submitted that the allegation against respondent No.13 in W.A.No.421/2022 is not that fund was not available in the account of the Society. It is further submitted that in the facts of the case, the learned Single Judge is justified in quashing the orders and in issuing the direction to hold fresh election to the post of President of Milk Union. In support of aforesaid submissions, reliance has been placed on decisions in 'State of Madhya Pradesh And Others Vs. Sanjay Nagayach And Others', (2013) 7 SCC 25 , ' Ravi Yashwant Bhoir Vs. District Collector Raigad And Others', ( 2012 4 SCC 407 , ' Tarlochan Dev Sharma Vs. In support of aforesaid submissions, reliance has been placed on decisions in 'State of Madhya Pradesh And Others Vs. Sanjay Nagayach And Others', (2013) 7 SCC 25 , ' Ravi Yashwant Bhoir Vs. District Collector Raigad And Others', ( 2012 4 SCC 407 , ' Tarlochan Dev Sharma Vs. State Of Punjab And Others', (2001) 6 SCC 260 , 'Sharda Kailash Mittal Vs. State Of Madhya Pradesh And Others', (2010) 2 SCC 319 , 'Fuljit Kaur Vs. State Of Punjab And Others', (2010) 11 SCC 455 , 'Nanjundaswamy Vs. Assistant Registrar Of Cooperative Societies', ILR 1992 KAR 979, 'Dr. S.P. Kapoor Vs. State Of Himachal Pradesh And Others, (1981) 4 SCC 716 , 'Whirlpool Coporation Vs. Registrar Of Trademarks, Mumbai And Others', (1998) 8 SCC 1 , 'Jayarajbhai Jayantibhai Patel Vs. Anilbhai Natubhai Patel And Others', (2006) 8 SCC 200 , and 'Appa Saheb, R. Kerakalamatti Vs. Additional Registrar Of Co-Operative Societies In Karnataka And Others', AIR 1985 KAR 202 . 11. On the other hand learned Additional Advocate General submitted that the learned Single Judge ought to have relegated respondents 12 and 13 to avail of the remedy provided under the Act and was not justified in interfering with the orders of disqualification and in setting aside the election of the appellants in the appeals. In support of aforesaid submissions, reliance has been placed on decisions in 'Umesh Shivappa Ambi & Ors. vs. Angadi Shekara Basappa & Ors', (1998) 4 SCC 529 , Jaspal Singh Arora Vs. State of m.p. & ors., (1998) 9 SCC 594 and 'Avtar Singh Hit Vs. Delhi Sikjh Gurdwara Management Committee & Ors', (2006) 8 SCC 487 . 12. We have considered the submissions made on both sides and have perused the record. It is well settled in law that once an election is over, challenge to the election has to be made by preferring an election petition and in exercise of the writ jurisdiction of this Court under Article 226 ordinarily no interference should be made. 12. We have considered the submissions made on both sides and have perused the record. It is well settled in law that once an election is over, challenge to the election has to be made by preferring an election petition and in exercise of the writ jurisdiction of this Court under Article 226 ordinarily no interference should be made. In N.P. Ponnuswami v. Returning Officer - AIR 1952 SC 64 , a Constitution Bench of Supreme Court held as under: "The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court." 13. Similarly, in Umesh Shivappa Ambi & Ors (supra), it has been held that once the election is over, challenge to the election has to be made by preferring an election petition. Similar view was taken in Jaspal Singh Arora (supra) and Kurapati Mariadas (supra) as well as Avatar Singh Hit (supra). Similar view has been taken in West Bengal State Election Commission v. Communist Party Of India (Marxist) - (2018) 18 SCC 141 . Thus, the legal proposition is well established that where a right or liability is created by a statute which gives a special remedy for enforcing the same, the remedy provided by the statute must only be availed of. 14. The learned Single Judge in the facts of these cases, heard in interfering with the orders of disqualification dated 31.12.2021 passed by the Assistant Registrar of Co-operative Societies and heard in setting aside the selection of the appellant to the post of President of Milk Union, inter alia on the ground that copies of the orders of disqualification were not served and that the election for the post of President was postponed. The grievances of respondent Nos.12 and 13 can be adjudicated in the forum provided by law. 15. The grievances of respondent Nos.12 and 13 can be adjudicated in the forum provided by law. 15. For the aforementioned reasons orders dated 28.04.2022 passed in W.P. No.233/2022 and W.P. No.243/2022 are hereby quashed. The respondent Nos.12 and 13 are granted the liberty to take recourse to the remedy provided to them in law. 16. Needless to state that in case respondent Nos.12 and 13 take recourse to the forum provided in law for redressal of their grievance, the same shall be expeditiously adjudicated. Accordingly, the appeals are disposed of.