1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 7TH DAY OF FEBRUARY 2013 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION No.75828/2013 (CS-EL/M) AND WRIT PETITION Nos.75885-75887/2013 C/w WRIT PETITION Nos.75835-75839/2013 And WRIT PETITION Nos.75849-75859/2013 W.P.Nos.75828/2013 and 75885-75887/2013: BETWEEN: 1. [ENTITY], D/o Malagouda Patil, Age: 28 years, Occ: Household work and Agriculture, R/o Soundatti, Tq: Raibag, Dist: Belgaum. 2. Smt.[ENTITY], W/o Iraagouda Patil, Age: 50 years, Occ: Household work And Agriculture, R/o Soundatti, Tq: Raibag, Dist: Belgaum. 3. Sri [ENTITY], D/o Baburao Patrol, Age: 47 years, Occ: Agriculture, R/o Yadrav, Tq: Raibag, Dist: Belgaum. 2 4. Sri [ENTITY], S/o Bandu Patil, Age: 59 years, Occ: Agriculture, R/o Nasalapur, Tq: Raibag, Dist: Belgaum. Petitioners (By Sri [ENTITY], Advocate) AND: 1. The [ENTITY], Represented by its Secretary, Department of Co-operation, M.S.Building, Bangalore-1. 2. The [ENTITY], By its Secretary, Ministry of Agriculture, Department of Agriculture and Co-operation, Krushi Bhavan, New Delhi. 3. The [ENTITY]. 4. The [ENTITY]. 5. [ENTITY], Chikodi, Dist: Belgaum (Karnataka State), Represented by its Managing Director. Respondents 3 (By Sri [ENTITY], AGA for R-1, Sri [ENTITY], Advocate for R-2 and R-3, Sri [ENTITY], Advocate for R-4, Sri [ENTITY], Advocate for R-5) These writ petitions are filed under [SECTION] and [SECTION] of the [ACT] praying to quash the impugned calendar of events dated 28.1.2013 issued by the R4 for conducting the election to the Board of Directors to the R5 Society vide Annexure-B and etc. [CASE NUMBER] and 75849-75859/2013: BETWEEN: 1. [ENTITY], Aged about 61 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 2. [ENTITY], Aged about 55 years, Occ: Agri., R/o Diggewadi Village, Tq: Raibag, Dist: Belgaum. 3. [ENTITY], Aged about 46 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 4. [ENTITY], Aged about 37 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 4 5. [ENTITY], Aged about 70 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 6. [ENTITY], Aged about 60 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 7. [ENTITY], Aged about 37 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 8. [ENTITY], Aged about 31 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 9. [ENTITY], Aged about 48 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 10. [ENTITY], Aged about 45 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 11. [ENTITY], Aged about 38 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 5 12. [ENTITY], Aged about 50 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 13. [ENTITY], Aged about 47 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 14. [ENTITY], Aged about 51 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. 15. [ENTITY], Aged about 55 years, Occ: Agri., R/o Diggewadi Village, Tq: Raibag, Dist: Belgaum. 16. [ENTITY], Aged about 62 years, Occ: Agri., R/o Saundatti Village, Tq: Raibag, Dist: Belgaum. Petitioners (By Sri [ENTITY], Sr.Counsel for Sri [ENTITY], Advocate) AND: 1. The [ENTITY], Represented by its Secretary, Department of Co-operation, M.S.Building, Bangalore-1. 6 2. The [ENTITY], By its Secretary, Ministry of Agriculture, Department of Agriculture and Co-operation, Krushi Bhavan, New Delhi. 3. The [ENTITY]. 4. The [ENTITY]. 5. [ENTITY], Chikodi, Dist: Belgaum (Karnataka State), Represented by its Managing Director. Respondents (By Sri [ENTITY], AGA for R-1, Sri [ENTITY], Advocate for R-2 and R-3, Sri [ENTITY], Advocate for R-4, Sri [ENTITY] and Sri [ENTITY], Advocate for R-5) These writ petitions are filed under [SECTION] and [SECTION] of the [ACT] praying to direct the R4 to delete the names of the dead persons from the voters list and that till such time to keep the calendar of events dated 28.1.2013 vide Annexure-C in abeyance and etc. These writ petitions coming on for preliminary hearing this day, the Court made the following: 7 ORDER
The petitioners are the members of [ENTITY], Chikodi, a Multi- State Co-operative Society. In [CASE NUMBER], the petitioners have called into question the calendar of events, dated 28.01.2013 issued by the fourth respondent Returning Officer for conducting the election to the Board of Directors of the fifth respondent Society. In [CASE NUMBER], the members of the fifth respondent Society have sought a direction to the fourth respondent Returning Officer to delete the names of dead persons from the voters' list and to keep the calendar of events, dated 28.01.2013 in abeyance until such time that the exercise of deleting the names of the dead persons is completed.
2. Sri [ENTITY], the learned counsel for the petitioners in the first batch of the petitioners ([CASE NUMBER]) submits that the impugned calendar of events is not in keeping with the [ACT] (hereinafter referred to as '[ACT]' for short). By the said amendment, [SECTION] dealing with the Co-operative Society is inserted. [SECTION] thereof prescribes the earmarking of two seats for women on the Board of every Co-operative Society. It also prescribes reserving one seat for the persons belonging to Scheduled Castes or Scheduled Tribes. The said provisions read as follows:
"243ZJ. Number and term of members of board and its office bearers.- (1) The board shall consist of such number of directors as may be provided by the Legislature of a State, by law:
Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one:
Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.
3. Sri [ENTITY] submits that [SECTION] contains the mandatory requirement that the election be conducted by any independent body or authority. The conducting of the elections in question by a Government Officer runs in sharp contrast to [SECTION], which reads as follows-
"243ZK. Election of members of board. -
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislative of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.
4. Sri [ENTITY] brings to my notice the provisions contained in [SECTION], which read as follows:
"243ZT. Continuance of existing laws.-
Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the [ACT], which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.
5. He submits that if the State does not bring the legal regime in conformity with the [ACT] on the expiry of one year from the date of its commencement, the provisions therein become automatically applicable. He submits that as the [ACT] has come into force from 15.02.2012, one year's period therefrom expires on 14.02.2013. Therefore, if any election to the Co-operative Societies has to take place after the cut-off date, 14.02.2013, it has to be strictly in conformity with the provisions contained in the [ACT], which are extracted hereinabove.
6. Sri [ENTITY] submits that the bunch of dead persons are included in the electoral rolls. He estimates their number as 4,500. The retention of their names in the electoral rolls are vitiating the elections. Because of the inclusion of the names of as many as 4,500 persons, the petitioners have a legitimate apprehension that the mass rigging would take place in favour of present Directors of the Board of the fifth respondent Society.
7. The learned counsel submits that the petitioners have promptly submitted the representations/complaint with the Returning Officer, Central Government, etc. But they have not evoked any response from them. He read out paragraph Nos.38 and 41 from the Apex Court judgment in the case of [PRECEDENT]. They are extracted herein below:
38. Lastly, it was contended by learned counsel for the respondents that the elections already having been held and the members having been in office for more than one and a half years, this Court should not intervene, specially as the appellants could have challenged the elections by way of an election petition which was not done. This contention is wholly devoid of merit. The decision of this Court in [PRECEDENT] is a complete answer to this contention.
41. The Bar Council of India is directed to appoint a Special Committee as contemplated by [SECTION] within two weeks from the date on which a copy of this judgment is communicated to them and the Special Committee shall, within four months of its being constituted, hold the elections for constituting a new Kerala Bar Council in accordance with law. Till the elections are held, the Special Committee shall, as provided by [SECTION] of the Act, discharge the functions of the State Bar Council with all other consequences provided thereunder.
8. Sri [ENTITY], the learned counsel appearing for the petitioners in second batch of petitions ([CASE NUMBER]) submits that the petitioners are not stalling the election process in any way. They only want that the names of the dead persons be deleted from the electoral rolls. He requests that the Returning Officer be directed to ascertain the death of the members from the local bodies. He also submits that the petitioners would undertake to assist the Returning Officer in the said exercise. He submits that the Division Bench's view in the case of [PRECEDENT] in [CASE NUMBER] AND [CASE NUMBER] that the Court should not interfere once the calendar of events is issued, is in the context of the elections to the local bodies and in view of the absolute bar contained in [SECTION] of the [ACT]. There is no such bar either in the [ACT] or in the statute as far as the election to the Co-operative Society is concerned. When the large scale irregularities in the preparation of the electoral rolls are pointed out, it would be in the interest of all the members of the fifth respondent Society to have the electoral rolls updated and then go in for the elections.
9. Sri [ENTITY] relies on this Court's decision in the case of [PRECEDENT] for advancing the contention that it is the courts' plain duty to correct at the earliest stage the serious errors which, if the election is allowed to continue unimpeded, would inevitably result in the wasteful expenditure of public time and money. For advancing the contention that the jurisdiction under [SECTION] of the [ACT] is not ousted for considering the complaint of illegalities in the preparation of the electoral rolls in respect of the other bodies - other than the Union and State Legislatures, he relies on the Delhi High Court's judgment in the case of [PRECEDENT] in [CASE NUMBER] and other connected petitions disposed of on 21.10.2008. He relies on the said decision for making another submission that there is no purpose in punctiliously conducting the election, if it is ultimately found that a legally proper, sustainable and meaningful election has not been held.
10. He also sought support from the Apex Court's judgment in the case of [PRECEDENT] in [CASE NUMBER] disposed of on 10.09.1996 for buttressing his submission that the Court is not without jurisdiction to interfere, if it finds that the provisions of the [ACT] are being flouted in holding the election.
11. He also relies on the Bombay High Court's decision in the case of [PRECEDENT]. Paragraph Nos.12 and 13 of the said decision read as follows:
12. A valid list of voters is the basis of a valid election. Though a challenge to the voters' list many times involve questions of facts, if sufficient material is placed before the High Court prima facie establishing that qualified voters have been excluded and unqualified voters have been included in the voters' list and when the machinery as provided by the Act is available for the enquiry and if such enquiry can be ordered to be completed within shortest possible time so that the elections can take place on or about the scheduled date, this Court would be justified in entertaining challenge to the voters' list.
13. Sugar factories and other large Cooperative Societies have become new centres of political and social power. There is a growing tendency to cling to the power by whatever means. To exclude the qualified voters whose loyality to ruling group is doubtful and to include on the eve of elections favourable voters whose qualifications cannot be examined by the rival group are some of the methods which are often adopted. If this Court orders the authorities under the [ACT] to examine the list of voters and enquire the objections, that would be a proper exercise of the jurisdiction of this Court. It is a fact, which can judicially be acknowledged, that elections of these Societies involve a large expenditure. If these objections are set right to the possible extent before the commencement of the election, this can hardly be objected to. Of course, care will have to be taken that the due date of the elections should not as far as possible be disturned and such an enquiry should be ordered expeditiously without unduly delaying the take over of the newly elected valid body.
12. As the election to the fifth respondent Society's Board is taking place on 15.02.2013, [ACT] is applicable with all force. No election to the fifth respondent Society's Board can be valid unless the two seats are earmarked for women and one seat is earmarked for Scheduled Castes or Scheduled Tribes.
13. Sri [ENTITY], the learned counsel appearing for the respondent No.5 submits that the present Board of Directors have assumed office on 10.3.2008. Its five years' term of office expires on 10.3.2013. He submits that as per [SECTION] to the [ACT], the Board of Directors in office are required to meet atleast 60 days in advance of the date of expiration of the term and by resolution determine the date, time and place for convening a general body meeting for the conduct of elections to the successor board. In compliance with this requirement, the Board of Directors in office passed the resolution in its meeting held on 10.12.2012 resolving to hold the election to the successor board on 15.2.2013 and to appoint the fourth respondent as the Returning Officer.
14. Sri [ENTITY] submits that as per clause 2 of the Schedule to the [ACT], the Returning Officer has prepared the list of members eligible to vote 30 days prior to the date fixed for the poll. He has published the calendar of events on 28.1.2013. He submits that on the death of the members of the Society, the subject of transfer of interest is governed by [SECTION] of the [ACT]. He submits that the identity of the members would be ascertained in accordance with the provisions in clause 5 (g) and (h) of the Schedule.
15. He submits that it is not the grievance of any of the members that their names are excluded from the electoral rolls. Nobody has come forward with a complaint or representation that the names of the eligible members are excluded from the voters' list.
16. The learned counsel relies on the Apex Court's judgment in the case of [PRECEDENT] to advance the submission that the Court should not stay the continuation of the election process, even if illegalities or breach of rules are alleged. The remedy open to the aggrieved party is to file the election petition. If the holding of the election is stalled on the complaint of few individuals, it would cause grave injustice to many voters and would be an anathema to the democracy. The invoking of the judicial remedy has to be put off till the election process is completed.
17. He has also relied on the Apex Court's judgment in the case of ELECTION COMMISSION OF INDIA, THROUGH [PRECEDENT]. He read out paragraph No.25 and the last portion of paragraph No.29. They are extracted hereinbelow:
"25. [PRECEDENT] is a case relating to municipal elections in the State of Uttar Pradesh. Barely one week before the voting was scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and delimitation of constituencies and arbitrary reservation of constituencies for Scheduled Castes, Scheduled Tribes and Backward Classes, the High Court passed interim order stopping the election process. This Court quashed such interim orders and observed that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. The importance of holding elections at regular intervals cannot be overemphasised. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies.
29. The conclusions which inevitably follow are: in the field of election jurisprudence, ignore such things as do not materially affect the result of the election unless the requirement of satisfying the test of material effect has been dispensed with by the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve, in larger public interest, the goal of constituting a democratic body without interruption or delay on account of any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination."
18. He has also relied on the Apex Court's judgment in the case of SUPREME COURT BAR ASSOCIATION AND OTHERS v. B.D. KAUSHIK reported in (2011) 13 SCC 774. Paragraph No.61 read out by him is extracted hereinbelow:
"61. This Court has no doubt at all that the injunction granted by the learned Judge has propensity to intervene and interfere with the election process which had already started. Apart from the prayers claimed in the applications filed under [SECTION] and [SECTION] [ACT] the Court could not have ignored the effect of granting an injunction. If the injunction granted by the learned Judge had not been stayed by this Court, the office- bearers of SCBA would have been required to prepare a new voters' list as if unamended [SECTION] was in operation and the exercise undertaken by them for preparing voters' list in the light of the amended [SECTION] would have been of no consequence. Thus the injunction claimed by the respondent - plaintiffs which had very wide repercussions on the elections, which were to be held in the year 2003, should not have been granted by the learned Judge.
19. Sri [ENTITY], the learned counsel appearing for the respondent No.4 submits that the fourth respondent is anxious to act on the death certificates issued by the local bodies, should the petitioners produce the same.
20. Sri [ENTITY], the learned counsel for the respondent Nos.2 and 3 submits that the petitioners have filed the complaint/representation on 31.1.2013. On the next day, they have hastened to the Court. The complaint/representation would be considered by the concerned functionaries of the Central Government in accordance with law.
21. Sri [ENTITY], the learned Additional Government Advocate appearing for the respondent No.1 submits that the calendar of events is already issued. He brings to my notice the Apex Court's judgment in [CASE NUMBER] in the case of [PRECEDENT] regarding the election to the urban local bodies. He brings to my notice that the Hon'ble Supreme Court has directed the State Election Commission to proceed with the elections with the existing census figures and existing electoral rolls.
22. The submissions of the learned counsel have received my thoughtful consideration.
23. The first question that falls for my consideration is whether the calendar of events is liable to be quashed, as no seats are reserved for women and for the persons belonging to the Scheduled Castes/Scheduled Tribes. The second question is whether the elections in question have to be conducted only by an authority or by a body and not by the respondent No.4. To avoid the repetition, I am considering them together.
24. The provisions contained in [SECTION] and the provisions contained in [SECTION] do not automatically come into play. The State has to make the legislation in the matter. What if the State does not come out with any enactment or amendment. The answer can be found in [SECTION], the provisions of which are already extracted supra. One year's time is given to the State to bring the legislative provisions in conformity with the [SECTION] inserted by the 97th Amendment. On the expiration of one year, all the provisions, which are inconsistent with the provisions of [SECTION] cease to be operative. Thus, in the absence of any legislation by the State, there is no impediment in holding election to the fifth respondent Society in accordance with the provisions contained in the [ACT] and the Rules framed thereunder till 14.2.2013. As the amendment has come into force from 15.2.2012, the laws made in the pre-amendment era would govern the field till 14.2.2013.
25. But then, does it mean that if the election is to be held on the next day, that is 15.2.2013, it has to be only by earmarking seats for women and for the persons belonging to the Scheduled Castes/Scheduled Tribes and by conducting the elections by an independent body or authority? Whether the fourth respondent can be appointed as the Returning Officer for the purpose of holding the elections in question?
26. There cannot be any watertight compartmentalization. If the election process has begun before 14.2.2013, it can be concluded following the requirements of the old regime. Otherwise, it leads to not only anomalous situation but catostrophic consequences. The election process cannot be partly under the old regime and partly under the new regime. The insistence for the application of both the regimes would only amount to taking a pedantic view. The taking of such a pedantic view is not warranted, as the rigors of transition are required to be softened.
27. Nextly, I am called upon to consider the petitioners' grievance over the inclusion of the names of the dead persons in the electoral rolls. It is nobody's case that any eligible voters' names are missing from or in the electoral roll. The only grievance is that the dead members' names are included. There is of course difference in the perception of the number of dead members. While the petitioners claim that their number aggregates to 4,500, the respondent No.5 puts the figure at not more than 80.
28. It would have been ideal if the provisional list of the members were to be published and the objections were called for. On considering the objections, if any, the final revised electoral roll ought to have been prepared. But that it has not been done, cannot be an adequate ground for stopping the ongoi`ng election process. This is all the more so because the [ACT] and the Rules framed thereunder do not provide for the publication of the provisional list.
29. In the case of [PRECEDENT] (supra), the Apex Court has emphasized the importance of holding elections at regular intervals. In its latest decision in the case of [PRECEDENT], the Hon'ble Supreme Court has directed the State Election Commission to conduct the election to the urban local bodies based on the existing census figures and the existing rolls.
30. The grievance of the petitioners over the inclusion of the dead members' names cannot be left unaddressed. I reserve the liberty to the petitioners to obtain and produce the death certificates from the jurisdictional local bodies in respect of the members, who are said to be dead and whose names figure in the electoral rolls. The respondent No.4 shall not allow the dead members' votes to be cast by anybody. He shall objectively look into the complaints of the petitioners both before the polling and at the time of polling.
31. These petitions are disposed of with the aforesaid directions. No order as to costs.
JUDGE hnm/MD