Rama Jois, J.
1. In these Writ Appeals, following two questions of law arise for consideration:
(1) Whether this Court has no jurisdiction under Article 226 of the Constitution of India to interfere with any illegality committed in the course of holding election to the offices of any authority/body, which is regulated by statutory provisions, if the law provides for filing an election dispute challenging the legality of the election of the candidates declared elected?
(2) If the answer to the above question is in the negative, then under what circumstances this Court should exercise or should decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution?
2. Brief and undisputed facts of the case are these: The 2nd respondent - The Taluka Agricultural Produce Co-operative Marketing Society (T.A.P.C.M.S) is a Co-operative Society constituted and functioning under the Karnataka Co-operative Societies Act 1959 ('the Act' for short). The area of its operation is Bangalore North Taluk. Under Section 16 of the Act, any other Co-operative Society can be admitted as its member. The Agricultural Co-operative Societies (Vyavasaya Seva Sahakara Sanghas) established at various places in the Taluk, are its Members. Matters relating to election to the Managing Committee of the Society are regulated by the provisions of the Act and the Rules framed thereunder. In respect of certain classes of co-operative societies, Section 29C(5) of the Act empowers the State Government to prescribe one of the conditions of eligibility for election. It reads:
'29C: DISQUALIFICATION FOR MEMBERSHIP OF THE COMMITTEE:
XXX XXX XXX(5) In the case of co-operative marketing societies, consumers co-operative societies and such class or classes of co-operate societies as may be specified by the State Government, by notification in the official gazette, no member shall be eligible for being appointed or elected as a member of the committee of such co-operative society if he does not fulfil the minimum qualifications relating to his transactions with the co-operative society upto such monetary limits as may be specified from time to time in such notification.'
As can be seen from Sub-section (5), it confers power on the State Government to specify, by notification in the Official Gazette, the minimum qualification relating to the transactions of members upto such monetary limits and to say that members who do not fulfil such qualification shall not be eligible for being appointed or elected as a member of the committee of the society of which they are members.
3. In exercise of the power under Section 29C(5), the State Government issued a Notification on 25th January 1991. It reads:
' GOVERNMENT OF KARNATAKA
No. CMW.5.CPC/87.
Karnataka Govt. Secretariat,
M.S. Building,
Bangalore, dated 25-1-1991.
NOTIFICATION
In exercise of the powers conferred by Sub-section (5) of Section 29C of the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959), the Government of Karnataka hereby specify that in case of the classes of co-operative societies specified in column (2) of the Table below, no member shall be eligible for being appointed or elected as a member of the Committee of such co-operative society, if he does not fulfil the minimum qualifications relating to his transactions with the co-operative society of the monetary limits specified in the corresponding entries in column (3) thereof:
TABLE
Sl. No.
Class of Societies
Monetary limits of transactions
1.
Karnataka State Co-operative Marketing Federation Ltd.Bangalore.
Both A-class B-class members should have transactedatleast Rs. 2-00 lakhs during the last preceding co-operative year.
2.
Taluk Agricultural Produce Co-operative MarketingSocieties
A-class members should have transacted atleast Rs.50,000/- during the last preceding co-operative year.
B-class members should have transacted atleast Rs.15,000-00 during the last preceding cooperative year.
The Notification No. CMW.5.CPS.87 dated 5-3-1990 is hereby withdrawn with immediate effect.
By Order and in the Name
of the Government of Karnataka
Sd/-
R. Shivaji Rao,
Under Secretary to Government,
Co-operation Department.'
As can be seen from the above Notification, in respect of Taluk Agricultural Produce Co-operative Marketing Society. 'A' class Members become eligible for being elected or appointed as Member of its Managing Committee, if they had transacted atleast to the extent of Rs. 50,000-00 during the last preceding co-operative year. The eligibility prescribed for 'B' class Members is that fop being eligible for appointment or election as the Member of the Committee, the T.A.P.C.M.S. concerned, they should have transacted with it atleast Rs. 15,000-00 during the last preceding co-operative year. There is no dispute that in respect of the second respondent - T.A.P.C.M.S. seven seats are available for being elected from among Societies who are 'A' class Members and two persons are to be elected from among 'B' class Members. Calendar of Events for the election to the Committee of the 2nd respondent - T.A.P.C.M.S. was issued on 9-7-1991, copy of which is marked as Annexure-F. The date fixed for filing the nomination was 23-7-1991. The date fixed for publishing the final list of candidates contesting the election was 26-7-1991 and the date of poll and declaration of the result of the election was 31-7-1991.
4. On 20-7-1991, the appellant requested the second respondent - Society, to furnish information regarding the number of Societies who had transacted with the second respondent - Society, atleast upto Rs. 50,000-00 during the last preceding co-operative year. The information was furnished on the same date vide Annexure-B. It reads:
'BANGALORE NORTH TALUK AGRICULTURAL PRODUCE CO-OP.
MARKETING SOCIETY LTD.
11/1, Mission Road (Subbaiah Circle), Bangalore-27.
Ref. No. BNT.GBM/91-92.
Dated 20-7-1991
To
Shri R. Ramakrishnappa,
Dasanapura, Dasanapura Hobli,
Bangalore North Taluk.
Sir,
Sub: Information regarding transactions made with TAPCMS, Bangalore North by member societies as per Government order No. CMW 5/CPS/87 dated 25-1-1991.
Ref: Your requisition letter dated 20-7-1991.
I write to inform that the following member societies only have transacted with this institution upto Rs. 50,000-00 (fifty thousand) and above during the preceding years.
1. VSSM Sondekoppa, Dasanapura Hobli
2. - do - Dasanapura - do -
3. - do - Alur - do -
4. - do - Madanaikanahalli - do -
5. - do - Byatarayanapura - do -
This is for your information, as desired.
Yours faithfully,
for the Bangalore North Taluk
Agricultural Produce Co-operative
Marketing Society Ltd.
Sd/-
Secretary.'
From the above communication, it is clear that only five Member Societies were eligible to have their representative elected to the Managing Committee of the second respondent - T.A.P.C.M.S. This information given was just three days earlier to the date fixed for filing the nomination. But the appellant found that as many as eleven persons had filed nominations representing different Societies, out of whom six persons were ineligible as the Societies concerned did not have the transaction with the second respondent to the extent of Rs. 50,000-00 as specified in the Notification of 25th January 1991 issued by the Government under Section 25C(5) of the Act, in the last preceding co-operative year. Inspite of the objection raised by the appellant that their nominations should be rejected, the Returning Officer accepted the nomination. The same Officer, however, rejected the nominations of the appellant in W.A. No. 2489/1991 for being a candidate for election from among 'B' class members on the ground that the Society he represented had not transacted with the second respondent to the extent of Rs. 15,000-00.
5. It is at the above stage, the appellant in W.A. No. 2487/1991 filed the Writ Petition praying for quashing the acceptance of the nomination papers of respondents-3 to 8 on the ground that it was done in flagrant violation of the Notification issued under Section 29C(5) of the Act. Respondents-1 and 2 and also respondents-3 to 8 could not and did not take the stand that respondents-3 to 8 were eligible to contest the election. The only point raised was that this Court cannot interfere with the election process in a Petition under Article 226 of the Constitution of India. Upholding the above contention, the Seamed Judge dismissed the Petition leaving liberty to the petitioner to challenge the election in a dispute under Section 70 of the Act. The relevant portion of the Judgment reads:
'3....none of them, i.e., respondents 3 to 8 had any transaction whatsoever with the society either to the tune of Rs. 50,000-00 or Rs. 15,000-00 as a matter of fact even anything less than that. On this aspect of the matter, the society and respondents 3 to 8 also agree. But then it is urged by Mr. G.D. Ashwathanarayana, learned Counsel for respondents 3 to 8 that his clients were prevented from trading with the second respondent-society when their business interest was shifted to some other society and that is how they were deprived of the chance of trading with the society in question. Whatever that may be, it becomes clear that none of respondents 3 to 8 herein had any dealings with the society in question during the preceding cooperative year. If that be so, they could not have been permitted to join the poll fray at all in view of the embargo at Annexure-A. But notwithstanding the same, the said notification rightly applied in the case of Nagaraju Reddy, the second petitioner, who had been properly disqualified from contesting the election. It is a matter of regret the Returning Officer did not follow suit in regard to respondents 3 to 8 as well. But the formidable objection raised on behalf of contesting respondents, i.e., the Society and respondents 3 to 8, is that whatever be the blunder committed by the Returning Officer, it is not now open for correction and correction if any must follow only after the election and that too by way of an election petition under the Act. It is not in dispute that the Act provides for an election dispute under Section 70A of the Karnataka Co-operative Societies Act.
4. A Division Bench, consisting of their Lordships Justice K.A. Swami and Justice D.R. Vithal Rao, in the case of Maruthi v. State of Karnataka [ILR 1990(2) Kar. p.1378] has enunciated a general principle that wherever under the Act in question an effective alternative remedy is available and the law provides for resolution of a dispute relating to election by a Special Tribunal, this Court should not interfere in exercise of the jurisdiction under Articles 226 and 227 of the Constitution. That was a case pertaining to election to a Municipal Council and their Lordships after posing the aforesaid question recorded the following answer:
'As an alternative and effective remedy is available and as the law provides for resolution of the dispute relating to election by a Special Tribunal and as the policy of law is to have the disputes about the special rights created by the enactment decided as speedily as may be by a Special Tribunal, it is not just and appropriate to exercise the jurisdiction under Articles 226 and 227 of the Constitution and interfere with the election process which has already commenced.'When a similar question arose in another matter arising under the Co-operative Societies Act, another Division Bench of this Court in B. Gurumallappa v. State of Karnataka : ILR1991KAR577 , held that the provisions for filing an election petition not being an efficacious remedy, a Writ in the nature of Mandamus can be issued to hold fresh election.
5. Regrettably the earlier decision in Maruthi's case had not been brought to the notice of their Lordships, presumably their attention was not drawn to it. I do not however wish to embark on this controversy. Suffice it to say, as far as first petitioner is concerned, he can have no grievance whatsoever at all. He has admittedly gained access to the poll fray and has contested the election. As far as the second petitioner Nagaraju is concerned, there is absolutely no dispute that his nomination paper had been rightly rejected by the Returning Officer and consequently he cannot have any grievance regarding the rejection. In that view of the matter, regard being had to the circumstances that neither of the petitioners can be said to be aggrieved in the real sense of the matter, I consider this to be not a fit case for interference.'
(Underlining by us)
As can be seen from the order of the learned Judge, it is beyond doubt that respondents 3 to 8 were ineligible to be elected to the Managing Committee of the second respondent-Society in view of the Notification issued by the State Government under Sub-section (5) of Section 29C of the Act and that the first respondent had committed a blunder in accepting the nomination of respondents 3 to 8, while he had rejected the nomination of Nagaraja Reddy relying on the same Notification in respect of elections from 'B' class Members. The said Nagaraja Reddy had also filed Writ Petition, which was heard along with the Writ Petition of the appellant. As pointed out by the learned Judge, there was no merit in his Petition and accordingly it was dismissed. He has preferred the connected Writ Appeal No. 2489 of 1991. There is no substance in that Appeal. As stated above the Writ Petition of the appellant was however dismissed on the ground that this Court could not interfere under Article 226 of the Constitution, in any matter concerning election even though the decision of the first respondent accepting the nomination of the respondents 3 to 8 was found to be patently illegal. Aggrieved by the said order, the appellant in W.A. No. 2487/1991 has presented the Appeal.
6. During the pendency of the Writ Petition, there was an interim order staying the publication of the result of the election. After the pronouncement of the order dismissing the Writ Petition on the request of the learned Counsel for the appellant (Writ Petitioner), the learned Judge continued the said stay order for another two weeks and in this Appeal the said stay order has been continued till the disposal of the Appeal. Accordingly, the result of the election has not been announced.
7. The first preliminary objection raised by Sri G.D. Aswathanarayana, the learned Counsel for respondents-3 to 8, who argued the matter for considerable time on the first day on which the matter was heard, was that though election in question was governed by statutory provisions, this Court has no jurisdiction under Article 226 of the Constitution of India to interfere, even though violation of law is proved. He submitted that though under Article 329 of the Constitution the bar to the exercise of power under Article 226 is expressly made applicable to elections to the Parliament and the State Legislatures, in respect of all elections to bodies other than those covered by the provisions of Article 329 of the Constitution also, the same principle applies and therefore the only remedy for all the illegalities committed, however flagrant they may be, was to challenge the election only by means of an Election Petition. In this case, he said a remedy was provided under Section 70 of the Act to raise a dispute, which reads:
'70. DISPUTES WHICH MAY BE REFERRED TO REGISTRAR FOR DECISION - (1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society arises -
(a) among members, past members and persons claiming through members, past members and deceased members, or
(d) between the society and any other co-operative society or a credit agency such dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
(2) For the purposes of Sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a co-operative society, namely,
xxx xxx xxx(c) any dispute arising in connection with the election of a President, Vice-President, Chairman, Vice-Chairman, Secretary, Treasurer or Member of Committee of the Society.'
The learned Counsel submitted that in view of the above provision, any illegality committed at any stage of election, has to be challenged only by raising a dispute under Section 70 of the Act and no petition under Article 226 of the Constitution was maintainable challenging the illegal action or orders of the Returning Officer, however patent and unsustainable it might be. In support of the above submission, he relied on the following two Decisions of the Supreme Court in MANHOOMAL v. HIRAMAL, : [1976]1SCR809 and in MUTHUSWAMY v. NATARAJAN, : [1988]2SCR759 as also a Division Bench Decision of this Court in MARUTHI v. STATE OF KARNATAKA, : AIR1990Kant356 .
8. Sri A.K. Subbaiah, the learned Counsel, who appeared for respondents 3 to 8 and addressed further arguments, however, frankly conceded that this Court had the jurisdiction to entertain the petition and he does not press the extreme contention that there was jurisdictional bar to entertain the Petition. He fairly submitted that any bar to the jurisdiction of this Court under Article 226 of the Constitution, must be round in any of the provisions of the Constitution itself and there was none in relation to elections other than to the Parliament and the State Legislatures. He, therefore, submitted that the real question to be considered in this case was whether the nature and gravity of the violation of law was such as would justify interference under Article 226, in order to avoid waste of public time and money and inconvenience to the institution.
9. We appreciate the correctness and the forthrightness of the stand taken by Sri A.K. Subbaiah. In view of the importance of the question and to avoid repetition of such objection, we consider it appropriate to record reasons for accepting the stand taken for the appellant as also for the respondents.
10. Article 226 of the Constitution confers powers on this Court to issue appropriate Writ for the enforcement of Fundamental Right or for any other purpose. There can be no doubt that in exercise of this power under Article 226 of the Constitution, any illegality committed by any Administrative Authority can be interfered with by this Court and matters relating to election are no exception so long as they are not matters relating to election to the Parliament and State Legislature, which stand entirely on a different footing in view of the total bar imposed by Article 329 of the Constitution.
11. This position in law, is laid down by the Supreme Court in HARI VISHNU KAMATH v. AHMED ISHAQUE, : [1955]1SCR1104 . In the said case, the question that arose before the Supreme Court was, as to whether the High Court had the jurisdiction to entertain a Writ Petition for the issue of a Writ of Certiorari against the order of Election Tribunal constituted under the Representation of People's Act, 1951, as it stood in 1955, deciding an election dispute. Placing reliance on Article 329 of the Constitution, it was contended before the Supreme Court that as an election to the Parliament or State Legislature could be challenged only by means of an Election Petition, petition under Article 226 of the Constitution would not lie before the High Court for the issue of a Writ of Certiorari against the decision of the Election Tribunal also. The Supreme Court negatived the contention. In doing so, the Supreme Court pointed out that the bar created under Article 329 of the Constitution was against interfering in election matters and the said Article did not curtail the power of the High Court under Article 226 of the Constitution to issue Writ of Certiorari to any Tribunal and the Election Tribunal was no exception. The relevant portion of the Judgment reads:
'6. The first question that arises for decision in this appeal is whether High Courts have jurisdiction under Article 226 to issue Writs against decisions of Election Tribunals. That Article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself.'
(Underlining by us)
In the above paragraph, the Supreme Court has emphatically laid down that any restriction on the power of the High Court under Article 226 of the Constitution, can be recognised only if it is incorporated in any of the provisions of the Constitution itself. In view of the above Decision of the Constitution Bench of the Supreme Court, it is clear that unless the jurisdiction of this Court under Article 226 of the Constitution stands curtailed by any other provision of the Constitution, it cannot be said that a Petition under Article 226 of the Constitution does not lie or this Court has no jurisdiction to interfere in election matters.
12. In support of the plea that this Court cannot interfere in matters relating to election to local authorities and other bodies notwithstanding the patent illegality committed by the Officer or Authority concerned, reliance has been placed on the Decision of the Supreme Court in Manhoomal's case. In the said case, the Supreme Court held that the right to stand for election to be elected as member of a committee of a local authority being a creature of the statute, all matters and disputes arising under that should be regulated in accordance with the provisions of the Act and that though Article 329 of the Constitution is not applicable, similar principle should be taken into account in the matter of interference in such election matters under Article 226 of the Constitution. In the same Judgment, however, after holding that there was no room for the High Court to interfere under Article 226 of the Constitution on the facts of that case, the Supreme Court added that in that case, it was not necessary to consider the question as to whether under extraordinary circumstances the High Court should exercise the power under Article 226 in matters relating to an election to local bodies.
13. A reading of both the observations together make it clear that the Supreme Court had made a distinction between the maintainability and entertainability of Writ Petition in election matters. The principle laid down by the Supreme Court is that in respect of election matters, unless an extraordinary case is made out in a given case, a Petition under Article 226 of the Constitution should not be entertained. This clearly means that a Petition under Article 226 of the Constitution challenging the legality of actions taken or orders made in the course of an election to a local authority or any other body on the ground of violation of law, is maintainable but should not be entertained by the High Court unless the violation of law made out is such as would justify the interference under Article 226 of the Constitution immediately to prevent abuse of power and waste of public time and money and the alternative remedy by way of Election Petition after the elections is not an efficacious remedy.
14. Another Decision of the Supreme Court, on which reliance is placed is, in the case of S.T. Muthuswami. That was a case in which the allotment of symbol for an election to Panchayat was challenged in a Writ Petition and the High Court had interfered with it. The Supreme Court reversed the Judgment of the High Court Strong reliance has been placed on this Judgment to say that a Petition under Article 226 of the Constitution is not maintainable in matters relating to election to local authority or any other body even if the election to such body is governed by statutory provisions and there has been flagrant violation of law. The relevant portion of the Judgment reads:
'13. In the ultimate analysis, the Full Bench laid down:
'12. There is no constitutional bar to the exercise of Writ Jurisdiction in respect of elections to Local Bodies such as. Municipalities. Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its Writ Jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 stated:
'....though no legislature can impose limitations on these constitutional powers, it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, Writ Petition should not be lightly entertained in this class of cases.'15. We are inclined to accept this view which lays down a salutary principle.'
(Underlining by us)
As can be seen from the above paragraphs, the Supreme Court approved the Full Bench Decision of the Madhya Pradesh High Court, in which the Full Bench had held that in respect of Municipal Elections, the petition under Article 226 of the Constitution was maintainable but it should not be entertained lightly. In Muthuswamy's case, the allotment of symbols was challenged. It is a settled principle in Election Law that in the case of any violation of Rule regulating allotment of symbols an election of candidate could be set aside if only it is proved that the result of the election was materially affected. Therefore, it cannot be said that in such a case the illegality is such as would call for interference under Article 226. To illustrate, in the case of illegality in the allotment of symbols, it is possible that a person who says that a symbol asked for according to Rules, by him, was not given, himself might get elected, in which event the illegality does not adversely affect him at all. Similarly, in case where the petitioner says that to a contesting candidate a symbol which could not have been allotted, was allotted, it is possible that such candidate might be defeated in the election, in which event the grievance does not survive. Even in the case of defeat of such petitioner or election of such contesting candidate, unless it is proved that the result of the election was materially affected by the non-allotment or allotment of symbol in violation of the Rules, as the case may be, the election cannot be set aside. Therefore, in all such cases the High Court should decline to entertain Writ Petition, is what the Supreme Court. has laid down. As far as illegal rejection of nomination paper, which does not involve any disputed question of fact, Division Benches of this Court have consistently taken the view that if the aggrieved party approaches this Court in good time without delay, it is expedient to interfere under Article 226, in order to give the specific relief to the aggrieved candidate, that is, to quash the order rejecting the nomination paper and direct the Returning Officer to accept the nomination and to proceed with the election and also to prevent waste of public money and time and to avoid inconvenience to the public institution concerned.
15. The ratio of these Decisions were followed even during the period when Clause (3), inserted into Article 226 by the 42nd Amendment, was in existence, which took away the jurisdiction of this Court under Clause (1), in cases where there was an alternative statutory remedy. The case is that of FAKIRAPPA v. DEPUTY COMMISSIONER, 1979(1) KLJ 153. The said Writ Petition was filed challenging the legality of rejection of the nomination at an election to Taluk Development Board constituted under the Karnataka Village Panchayat and Local Boards Act. An objection was raised to the effect that this Court had no jurisdiction to entertain the Petition as there was remedy by way of filing an Election Petition under Section 106 of that Act, in view of Clause (3) of Article 226 of the Constitution. This was decided by one of us (Rama Jois, J). On an elaborate consideration of the contention, the same was negatived holding that the relief which can be granted by this Court to a candidate; whose nomination is illegally rejected, under Article 226, could not be granted in an Election Petition and therefore Clause (3) of Article 226 also did not operate as a bar to the exercise of jurisdiction under Article 226(1). The relevant portion of the Judgment reads:
'4. I shall first take up W.P.5014/1978 in which the petitioner is aggrieved by the rejection of his nomination paper, Sri U.L Narayana Rao, learned Counsel for the petitioner submitted that the impugned order rejecting the nomination paper of the petitioner is liable to be quashed in exercise of the powers of this Court under Article 226(1)(b) of the Constitution and consequential relief should be granted. In support of this submission, he raised the following contentions:
(1) The rejection of the nomination paper of the petitioner is violative of Rule 8(3) and Rule 12(3) of the Rules and therefore is illegal; and
(2) The illegal rejection of the nomination paper has resulted in substantial injury to the petitioner.
As against the above contentions, Sri B.B. Mandappa, learned High Court Government Pleader, appearing for respondent-3, submitted as follows:
The petitioner has an alternative remedy against the impugned order by way of presenting an election petition under Section 106 of the Act and, therefore, the Writ Petition under Article 226(1)(b) of the Constitution is not maintainable in view of Clause (3) of Article 226 and the Writ Petition is liable to be rejected in limine.
XXX XXX XXXArticle 226(1)(b) confers power on the High Courts to issue appropriate Writ or order of the redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or ordinance or any order, rule, regulation, bye-law or other instruments made thereunder. The case of the petitioner squarely falls under Article 226(1)(b) of the Constitution. Therefore, the petitioner has a right to prevent the Writ Petition praying for the quashing of the impugned order of the Returning Officer rejecting his nomination paper and also for the issue of a further direction directing the Returning Officer to accept his nomination paper and to proceed to take the poll. But the objection of the respondents to the maintainability of the Writ Petition is based on Clause (3) of Article 226. According to the said clause, no Writ Petition for the redress of an injury in Sub-clauses (b) and (c) of Clause (1) of Article 226 shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. The contention of respondents 1 to 3 is that the petitioner has an alternative remedy of presenting an election petition after the election is over as provided under Section 106 of the Act. Learned Counsel for the petitioner, however, submits that there is no alternative forum created under the Act in which the petitioner can seek the reliefs which he has sought for in this Writ Petition. Elaborating this point, he submitted that in the Writ Petition, the petitioner has prayed for quashing the order of the Returning Officer rejecting his nomination paper and also for further consequential direction, namely, a direction to the Returning Officer to accept his nomination paper and to proceed to take the poll including the petitioner as a candidate. He submitted that while this Court under Article 226 can grant such a relief, the election Court constituted under Section 106 of the Act has no such power.
6. Article 226(1)(b) and (c) of the Constitution provides an effective remedy to the citizens aggrieved by the orders of the Government or any authority, which results in substantial injury to them, by the violation of any law or any provisions having the force of law by seeking for the issue of prerogative writs or orders of that nature. The object of Clause (3) is to see if any other forum is provided for, in any statutory provision through which the petitioner can secure the same relief, as can be granted under Article 226, then such an aggrieved person should not be permitted to by-pass that special forum and approach the High Court directly under Article 226 of the Constitution. If the law does not provide for such an alternative forum wherein the petitioner can seek similar relief, the jurisdictional bar created under Article 226(3) does not operate and the citizen cannot be deprived of the right to seek reliefs for his grievance under Article 226(1)(b) and (c) of the Constitution. It is a settled principle of interpretation that any special provision which takes away or abridges the jurisdiction of any Court which could be exercised but for the ouster of jurisdiction by such special provision should be construed strictly. Therefore, in coming to the conclusion in a given case as to whether a particular Court or tribunal, which has got general jurisdiction, is barred by any specific statutory provision which creates a special Court or tribunal, the question required to be examined is whether the particular relief is within the jurisdiction of the special Court or tribunal so constituted. A similar question was examined by the Supreme Court in Co-operative Central Bank Ltd. v. Industrial Tribunal, Hyderabad : (1969)IILLJ698SC . In the said case the question which came up for consideration before the Supreme Court was whether Section 61 of the Andhra Pradesh Co-operative Societies Act barred the jurisdiction of the Industrial Tribunal to decide the dispute relating to salary, scales and adjustments between a co-operative society and its employees. The Supreme Court held that having regard to the power conferred on the Registrar under Section 61 of the said Act, the Registrar could not have granted the reliefs claimed by the parties relating to salary, scales and adjustments, and, therefore, the Industrial Tribunal had the jurisdiction to decide the said issue. The relevant portion is contained in para 7 at page 251, which reads as follows:
'Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his power in the Act itself.'Therefore, in coming to the conclusion, whether this Court has jurisdiction or not to entertain the Writ Petition, the important aspect for consideration is to see as to what is the relief sought for by the petitioner, and whether the election Court or tribunal constituted under the Act has the power to grant the same or substantially the same relief. If the answer is 'yes', then this Court has no jurisdiction to entertain this Writ Petition. Coming to the present case, the Returning Officer rejecting the nomination paper of the petitioner and for issue of a direction to the Returning Officer to accept the nomination paper of the petitioner and to take the poll including the petitioner as one of the candidates along with other candidates whose nomination papers have already been accepted. It is not disputed that this Court has the power to give such reliefs under Article 226(1)(b) of the Constitution. This takes me to the question as to whether the election tribunal constituted under the Act has the power to give this relief if an election petition to the petitioner which could be presented by him after the election is over. The Section which provides for presenting of an election petition in 'respect of elections to a Taluk Development Board is Section 106 of the Act. The relevant portion of the Section reads as follows:
'106. Determination of the validity of Elections: (1) At any time within fifteen days after the declaration of the result of an election, any candidate who stood for election or any person qualified to vote at that election, may apply, together with a deposit of one hundred rupees as security for costs, to the Munsiff having jurisdiction in the Taluk concerned for the determination of the validity of the election.
(2) The Munsiff shall after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election or setting aside the election. For the purposes of the said enquiry, the Munsiff may exercise any of the powers of a Civil Court. He may also awards costs in such manner as he may deem fit and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure 1908, (Central Act V of 1908). If he sets aside an election, he shall forthwith communicate the fact to the Deputy Commissioner who shall take the necessary steps for holding a fresh election.
(3) Subject to the provisions of Sub-section (2),
(A) if the Munsiff is of opinion
(a) (b)......
(c) that any nomination has been improperly rejected; or,
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.
(i) by the improper acceptance of any nomination or,
(ii)(iii)(iv).....
the Munsiff shall declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.'
From the wordings of the above provision, it is plain and it is also not disputed by the learned Counsel for respondents 1 to 3 that the only relief that can be given by the election tribunal constituted under Section 106 of the Act, in the event of coming to the conclusion that any nomination paper has been improperly rejected, is to set aside the election of all the returned candidates in respect of the concerned constituency and communicate the said decision to the Deputy Commissioner, who is required to take necessary steps for holding a fresh election. Therefore, the result of the success in an election petition presented by a candidate, whose nomination paper had been illegally rejected, is the setting aside of the election and the holding of a fresh election. A fresh calendar of events has to be issued. Fresh nominations have to be called for and a fresh poll has to be taken. Under Section 106 of the Act, even after coming to the conclusion that the nomination paper of a candidate was illegally rejected, the election Court has no power to direct the Returning Officer to accept the nomination paper which was illegally rejected and to take a fresh poll only with the candidates who were already in the field. This position is also not controverted on behalf of respondents 1 to 3. Therefore, it is clear that Section 106 of the Act gives no remedy to the petitioner to have a fresh poll on the basis of the nomination paper which is found to be illegally rejected along with the other candidates who were contesting at the election which is set aside. The right to contest on the basis of the nomination of which the candidate was deprived by the illegal rejection by the Returning Officer is lost for ever. Holding of a fresh election by the issue of a fresh calendar of events is not the same thing as the restoration of the right which the petitioner is seeking in this Writ Petition by praying for the quashing of the impugned order of the Returning Officer and for a further direction to the Returning Officer to accept the petitioner's nomination and to take the poll. If the statute had provided a pre-election remedy to challenge the illegal rejection of a nomination paper before any prescribed authority on whom the power is conferred to set aside an order illegally rejecting the nomination paper to give direction to the Returning Officer to accept the nomination paper and proceed to take the poll, it would have been the same as could be granted in a Writ Petition. Even if the pre-election remedy was not considered expedient, if at least the statute had conferred the power on the election Court that in cases where it comes to the conclusion that any nomination paper was illegally rejected, not only to pass an order setting aside an election but also to direct the Returning Officer to accept the very nomination paper which was rejected and to hold a fresh poll along with only the other candidates, who were already in the field, such a remedy would in substance be the same as could be granted under Article 226 of the Constitution, though postponed to a post-election period. In both cases, such a provision would have attracted the jurisdictional bar created by Clause (3) of Article 226 of the Constitution. In this behalf it is necessary to point out the words 'such remedy' used in Article 226(3) of the Constitution. It is only where the Court comes to the conclusion that there is an alternative forum in which the petitioner can seek such remedy which he has sought for in the Writ Petition, the jurisdiction of the High Court stands excluded by operation of Clause (3) of Article 226 of the Constitution. In the present case, as already pointed out, the election Court is not invested with the power to grant the relief which the petitioner has sought for and which can be granted in the Writ Petition.
7. Respondents 1 to 3, however, relied on some of the Decisions in support of their contention. They relied on the Decision of the Supreme Court in Nanhoo Mal v. Hira Mal : [1976]1SCR809 . The said appeal arose out of a Decision rendered by the Allahabad High Court in a Writ Petition under Article 226 of the Constitution, as it stood before its amendment by the Constitution (Forty-second Amendment) Act, 1976. In that Writ Petition the calendar of events issued in connection with the election to the office of the President of a Municipal Board was challenged. As no stay order was granted by the High Court, the election took place and the appellant before the Supreme Court was declared elected. The election was set aside in the Writ Petition. The Supreme Court allowed the appeal. Referring to an alternative remedy provided under the Act and Rules for challenging the election of the President, the Supreme Court observed that the High Court was wrong in setting aside the election and should have allowed the parties to resort to the remedy by way of an election petition. The relevant observations on which respondents 1 to 3 relied are contained in para 5 of the Judgment which reads as follows:
'it follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in Ponnuswami's case : [1952]1SCR218 (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions, But once the legal effect above set forth of the provision of law which we are concerned with is taken into account, there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections, it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies.'The earlier part of the observations of the Supreme Court no doubt support the contention of respondents 1 to 3 to the effect that the High Courts should not interfere with or set aside, the elections in exercise of their power under Article 226 of the Constitution. But on a careful reading of the above para, it is clear that the said observations were made in a case where the High Court had set aside the election after it was held without directing the parties to resort to an election petition provided under the statute. As regards the bar of the High Court under Article 226 of the Constitution to entertain a Writ Petition in extraordinary circumstances, in the same para the Supreme Court has expressly left the said question open. The penultimate sentence in para 5 aforesaid read as follows:
'Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider.'This Court has consistently taken the view that once the election is over, the only proper and effective remedy for challenging the election is by means of an election petition. As regards cases of improper acceptance of nomination papers also this Court has consistently refused to entertain Writ Petitions on the ground that it causes no injury to a petitioner who complains of such illegal acceptance of nomination papers and also on the ground the remedy provided under the Act is an alternative and efficacious remedy. Further, this Court has always treated cases of rejection of nomination papers by patently illegal orders as cases of extraordinary nature which results in irreparable injury to a person whose nomination paper has been rejected.
8. After considering the Judgment of the Supreme Court in the case of N.P. Ponnuswami v. The Returning Officer : [1952]1SCR218 , which is referred to in the aforesaid Supreme Court Judgment, this Court in Muddamallappa v. Election Officer and Revenue Inspector took the view that cases of illegal rejection of nomination papers call for interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. The relevant portion is at page 325 which reads as follows:
'The principle that there should be no interruption of an election while it is in progress and that no attack should be made on the validity of any proceeding relating to such election until its completion is, as I understand it, a sound principle of election law which, ordinarily justifies the refusal of the exercise of such jurisdiction. But to say that, is not the same thing as saying that even in a case where the impugned order of an Election Officer is so plainly absurd or where the order made by him cannot but be regarded as one which it was impossible for him to make under the statutory provisions under which he was functioning, we should, nevertheless, even in such a case, decline to exercise our jurisdiction. In cases falling within that exceptional category, it is clear that it would be our plain duty to correct at the earliest stage such egregious errors, which if the election is allowed to continue unimpeded, would inevitably result in wasteful expenditure of public time and money.'On the same basis, this Court has always entertained Writ Petitions under Article 226 of the Constitution and interfered with the illegal rejection of nomination papers in connection with the elections to the local bodies. The other decisions are Lakshminarayana Rao v. Deputy Commissioner (1964-2 Mys.L.J. 438), D.R. Linge Gowda v. State of Mysore (1969-1 Mys.L.J. 94), Ramaiah v. State of Mysore (17 LR 528), Rajanna v. Election Officer. Doddaballapur (17 LR 598), and P. Nagaraju v. Tahsildar and Returning Officer (11 LR 461). In view of the series of Division Bench Decisions of this Court in which it is held that cases of rejection of nomination papers in plain contravention of the statutory provisions are cases which fall under the category of extraordinary cases which falls for interference under Article 226 of the Constitution and this question was specifically left open by the Supreme Court in Namhoomal's case, on which respondents 1 to 3 relied; therefore I do not agree with the submission made on behalf of respondents 1 to 3 that in view of the aforesaid Supreme Court Judgment the petition cannot be entertained,'
(Underlining by us)
16. The above Decision was taken in Appeal before a Division Bench of this Court in DEPUTY COMMISSIONER v. FAKIRAPPA YELLAPPA KALI, W.A No. 521 of 1978 DD 18-9-1978. The appeal was heard and decided by Chandrashekar, C.J. and E.S. Venkatararniah, J (as he then was). The Appeal was dismissed. The relevant portion of the order reads:
'This is an appeal from the order of Mr. M. Rama Jois, J. in W.P.5014/1978. In that Writ Petition the order of Election Officer, rejecting the nomination paper of the petitioner, was impugned. The only ground on which that nomination paper was rejected was, it was not stated therein that the petitioner belongs to Scheduled Caste. It is not disputed, that it has been mentioned in the nomination paper that he belongs to Kali community which is a sub-group of Madar caste which is undoubtedly is one of the Scheduled Castes. He had also produced a certificate issued by the Secretary of the Taluk Development Board in respect of his claim that he belongs to that community. The learned Single Judge has rightly held that the rejection of the nomination paper by the election officer was invalid, since there was no reasonable doubt that the petitioner belonged to Scheduled Caste.
In the result, this appeal is not admitted and is dismissed.'
The Division Bench Decisions referred to in Fakirappa and the said Decision as also the Decision of the Division Bench in Writ Appeal confirming the Decision in Fakirappa's case, show that as far as rejection of nomination paper is concerned, it stands on a different footing and in an Election Petition the relief which could be granted in a Writ Petition cannot be given at all and therefore this Court could interfere under Article 226 in such cases.
17. The learned Judge in dismissing the Writ Petition, has relied on a Division Bench Decision of this Court in Maruthi. In the said case, the Division Bench relying on the two Decisions of the Supreme Court in the cases of Manhoomal and Muthuswamy held as follows:
'Thus, we are of the view that as an alternative and effective remedy is available to the appellants and as the law provides for resolution of the dispute relating to election by a Special Tribunal and as the policy of law is to have the disputes about the special rights created by the enactment decided as speedily as may be by a Special Tribunal, it is not just and appropriate to exercise the jurisdiction under Articles 226 and 227 of the Constitution and interfere with the election process which has already commenced.
7. In this view of the matter, the Decisions of this Court in Fakirappa Yellappa Kali v. Divisional Commissioner, Dharwar and Ors. [1979(1) Kar.L.J. 1531 Angamuthu v. Tahsildar, Hiriyur (WP No. 4786/1979, DO 4-5-1979: 1979(2) Kar.LJ. 15, S.N. Item No. 55), on which reliance is placed by Sri Gachchinmath, learned Counsel for the appellant in W.A. No. 314/1990 are of no avail as we are bound by the decision of the Supreme Court in S.T. Muthuswami's case. We can only place our observations on record that we have come across several cases in which the nomination papers are rejected on untenable grounds on certain defects which are very formal in nature and which the Returning Officer himself is required to correct while receiving the nomination papers. The cases on hand are no exception as these cases also fall in the same category. Even in such cases also if the parties are to be told that they can seek relief only after election through election petition, it will cause great hardship to all the parties including the successful candidate and it would result in waste of public money and time. This may also give handle to unscrupulous Returning Officers to side with one party or the other and reject the nomination papers on untenable grounds. Therefore, it appears to us that the Supreme Court may consider as to whether the Rule laid down in Muthuswami's case requires reconsideration.'
18. It may be seen from the above paragraphs, the Division Bench in dismissing the Writ Petition proceeded on the basis that the Supreme Court in the case of T. Muthuswamy had laid down that the High Court cannot interfere in election matters even if flagrant illegality was committed in conducting the elections.
19. The learned Counsel for the appellant pointed out that in Muthuswamy's case, the Supreme Court had only laid down that in election matters the Writ Petitions should not be lightly entertained. Therefore, he submitted that if the Court is convinced that in a given case illegality committed is grave and the conscience of the Court is pricked, it could and should interfere. In support of this submission, the learned Counsel relied on a later Division Bench Decision of this Court in B. GURUMALLAPPA v. STATE OF KARNATAKA, : ILR1991KAR577 . The relevant portion of the Judgment reads:
'7. Dealing with (he next contention, the learned Single Judge no doubt has held that in the light of the specific provisions for filing an election petition as provided under Sub-section (4) of Section 70 of the Act, the Writ Petition under Article 226 of the Constitution cannot be sustained. In this context, learned Counsel for appellants drew our attention to the, ruling of the Kings Bench in Barnes' case wherein Their Lordships have observed as follows:
'as there had been no lawful election and the offices of aldermen were unfilled, the proper remedy was not a quo warranto, or an election petition under Section 87 of the Act, but a Mandamus under Section 225 to hold an election of aldermen, and that the Writ should be pre-emptory, notwithstanding any inconvenience that might be caused by the displacement of persons who were then acting as aldermen.'8. In the light of the above ruling, we have to hold that even though there is a provision for filing an election petition, since it is not an efficacious remedy, a Writ in the nature of Mandamus can be issued to hold fresh election on the lines referred to above.'
The above Decision supports the contention of the appellant that Writ Petition challenging action taken or orders made in the course of any elections governed by statutory provision other than election to the Parliament and the State Legislature, is entertainable. The resultant position is, in all such cases the guidelines given by the Supreme Court in Muthuswamy's case to the effect, that though this Court has jurisdiction under Article 226 of the Constitution to interfere in election matters, it being an extraordinary jurisdiction must not be exercised lightly and ordinarily we should decline to exercise our jurisdiction but in exceptional cases we could exercise the jurisdiction under Article 226, should be applied in deciding as to whether this Court should or should not interfere by exercising Writ Jurisdiction.
20. To sum up, our conclusions on the two questions of law arising for consideration, are as follows:
(1) Under Article 226 of the Constitution, this Court has the jurisdiction to interfere with the illegality committed in the course of holding election to the offices of any authority/body which is regulated by statutory provisions (other than election to the Parliament and State Legislature), notwithstanding the existence of an alternative remedy, by way of filing Election Petition, if violation of law is established. In other words, such a Writ Petition is maintainable.
(2) However, the jurisdiction of this Court under Article 226 being an extraordinary one, this Court as a general rule, will not and should not entertain a Petition in matters connected with such elections even if any illegality is shown to have been committed, if the law provides an effective alternative remedy and the illegality is such in respect of which adequate relief could be granted in an Election Petition. In other words, this Court will not and should not entertain Writ Petition lightly, as held by the Supreme Court in the case of Muthuswamy.
(3) In exceptional cases in which 'the illegality committed is patent and does not depend upon the investigation of disputed questions of fact and interference is called for to prevent, abuse of power and the taking of advantage of such illegality by its beneficiaries for some time, waste of public time and money and to avoid inconvenience to the public institution concerned, this Court has not only the power but also under a duty to interfere provided the party aggrieved approaches this Court forthwith and in good time.
21. The next question for consideration is, whether this is a fit case in which we should interfere. Normally illegal acceptance of nomination papers do not constitute a substantial injury to the other eligible candidates. It is well settled principle in law governing resolution of election disputes that in the case of illegal acceptance of nominations, the election of a candidate can be set aside only if it is proved by evidence that the result was materially affected on account of illegal acceptance of one or more nomination papers. Therefore, in such cases it is impossible to hold in a Writ Petition that the result of the election is going to be materially affected. Therefore, if the total number of eligible, candidates whose nominations are accepted is more than the number of candidates to be elected; even if a few nominations of ineligible candidates are accepted, it would give no valid ground for interference in a Writ Petition. Similarly, if the question as to whether a candidate whose nomination is accepted, is eligible or not, is a disputed question of fact, this Court cannot decide the said question in a Writ Petition. Therefore, as a general principle it can safely be said that a Writ Petition challenging the legality of acceptance of nomination papers should not be entertained. Therefore, in this case, we would have upheld the dismissal of the Writ Petition and dismissed the appeal, but for the flagrant illegality committed and abuse of power indulged in by the first respondent, but for which the appellant and four others have been declared elected as uncontested.
22. The facts and circumstances and the reasons which place this case in an exceptional category are:
(i) Flagrant illegality committed by the first respondent in accepting the nominations of respondents 3 to 8 knowing fully well that only five Societies specified in Annexure-B were eligible from among 'A' class Members in view of the Notification issued by the State Government dated 25-1-1991 (Annexure-A) under Section 29C(5) of the Act and that in view of that Notification respondents 3 to 8 were ineligible to contest in the elections, which fact is not even disputed by respondents 3 to 8.
(ii) Regarding 'B' class Members from which two Members are to be elected, the first respondent rejected the nomination paper of Nagaraja Reddy, the appellant in W.A. No. 2489 of 1991, relying on the same Notification (Annexure-A). The endorsement issued to him reads:
'Endorsement
The nomination paper of Sri R. Nagaraja Reddy s/o late Ramaiah in the 'B' category is rejected, since he has not transacted with Taluk Agricultural Produce Co-operative Marketing Society, to the extent of Rs. 15,000 (Rupees fifteen thousand only) during the last preceding year, as per Government Order No. CMW 5 CPC 87 dated 25-1-1991.
Bangalore
Sd/-
Returning Officer,
Date: 25-1 -1991
TAPCMS, Bangalore
North ARCS, Bangalore III Circle.'
The appellants have stated that out of 17 candidates as many as 15 nomination papers filed, in respect of 'B' class, including that of the appellant in W.A.2489/1991, were rejected relying on Annexure-A and the remaining two candidates were declared elected unopposed.
The conduct of the first respondent as above clearly establishes legal mala fides.
(iii) There is also no dispute that if the nominations of six persons, that is, of respondents 3 to 8 were rejected as they ought to have been rejected, there was no necessity for taking the poll for the reason that there would have been only five valid nominations including that of the appellants and all of them had to be declared elected uncontested as the number of persons to be elected from among 'A' class Members is seven, as has been done by the Returning Officer in respect of 'B' class Members.
(iv) The refusal on our part to interfere would help the ineligible candidates, some of whom are bound to be declared elected, as eligible candidates are only five, to reap the benefit of the illegal action of the first respondent till the disposal of election dispute, which would in the usual course take considerable time, which can be enlarged still, resorting to delaying tactics which is usually resorted to in such cases by those who had been benefited by the illegal action of the Returning Officer.
(v) It is not in the interest of the second respondent-institution, to allow all or any of the respondents 3 to 8 to secure the power to manage the affairs of the second respondent, when they are ineligible to hold the office.
23. Thus, on consideration of the facts and circumstances of the case, we consider that this is an exceptional case in which we should stop the illegality at the earliest and that if we decline to interfere under Article 226, we would be failing in our duty.
24. The learned Counsel for the appellants submitted that if we were to hold that in such glaring cases also we decline to interfere, it would only encourage the Returning Officers who are prone to act in such arbitrary manner to do so and allow the beneficiaries of such illegal action to reap the fruits until an election dispute is decided which would take and would be made to take longer time. We see considerable force in the submission.
25. The only ground forcefully urged by Sri A.K. Subbaiah, the learned Counsel for respondents 3 to 8 in support of his submissions that we should decline to interfere in this case, was that the appellant had not challenged the order of the Returning Officer accepting the nomination of respondents 3 to 8 and rejecting the objection raised by the petitioner, but they had only challenged the final list of candidates published vide Annexure-E. It is seen from the Writ Petition that the prayer made is for the issue of an appropriate Writ quashing the acceptance of nomination papers of respondents 3 to 8 as per Annexure-E. Annexure-E reads:
'Eligibility list of candidates under Rule 14(A)(3) of Cooperative Societies Rules after scrutinising the applications on 25-7-1991 at 11 a.m. for the election of the Working Committee of Bangalore North Taluk Agricultural Co-operative Marketing Federation Ltd., Bangalore, for the year 1991-92 to 1993-94 to be held on 31-7-1991:
Sl.No.
Eligible candidate's name
Membership No.
Class
1.
S. Ramareddy, S/o Subbaraya Reddy Allalasandra
3
'B' class
2.
M. Venkataramaiah, No.88, Kavalbyrasandra
1
'
1.
L.G. Gopalagowda, V.S.S.S.S. Madanayakanahalli
7
'A' class
2.
B.N. Nanjemariyappa, FSCS, Bettahalasur
11
'A' class
3.
N. Krishnappa, Madenahalli, SCS
13
-do-
4.
M. Anaranarayana, VSSSS, Bagalur
14
-do-
5.
N. Murari, Nagavara, VSNSS
2
-do-
6.
T. Venkatachalaiah, Alur VSNSS
10
-do-
7.
Shakuntala Murthy, Bandikodigehalli, SCS
12
-do-
8.
H.N. Chandra, VSNS, Byataranayapura
1
-do-
9.
S.B. Chaluviah, Sondekoppa, VSNSS
9
-do-
10.
L. Ramakrishnappa, VSNSS, Dasanapura
8
-do-
11.
Doddabasavarajappa, Chikkajala, SFSCS
15
-do-Place: Bangalore Sd/- Election Officer,Date: 25-7-1991 Bangalore North Taluk,TAPCMS (L), Bangalore-37.'
Annexure-E, no doubt, is the final list of eligibly candidates prepared by the Election Officer, which contains names of 11 candidates. Out of them, five are, appellant and four others, who are eligible and six are respondents 3 to 8 who are ineligible in view of the Notification (Annexure-A) issued by the Government under Section 29C(5). The learned Counsel for the appellants submitted that though the appellant had asked for copies of the orders of the Returning Officer accepting the nomination of respondents 3 to 8, rejecting the objection raised by the petitioner, no such copies were furnished. The specific averment made in the Writ Petition reads:
'2.....At the time of scrutiny, serious objections were raised in respect of respondents 3 to 8 nominations. But the Returning Officer has not taken into consideration. He has deliberately declared the nominations of respondents 3 to 8 as valid. The first petitioner has sought an endorsement from the 1st respondent as to how the nominations of respondents 3 to 8 are declared valid. However, the first respondent has refused to give the endorsement and the said application is still pending. Inspite of this letter, the 1st respondent declared the nominations of respondents 3 to 8 as valid. No reasons are given for declaring their nominations as valid. They have not conducted any financial transactions with the 2nd respondent-society. The nominations of respondents 3 to 8 ought to have been rejected. The Government notification issued by the Government is very clear on that issue. There is no ambiguity in it. Inspite of demand made by the petitioners for an endorsement, the first respondent deliberately did not issue any endorsement.
xxx xxx xxx3: The petitioners submit that the second petitioner's nomination has been declared invalid. The true copy of the endorsement is herewith produced at Annexure-C. The Returning Officer has taken into consideration the notification issued by the Government to reject the nomination of the 2nd petitioner. The 1st respondent has adverted to it in the endorsement. So she has applied dual policy in respect of Group A and B. In case of Group A she has accepted the nomination papers of respondents Nos. 3 to 8 inspite of the fact that they are not eligible to contest. She has failed to apply the rules issued by the Government as per the notification at Annexure-A. This fact itself makes it abundantly clear that the 1st respondent is pressurised to adopt dual policy. This is highly improper and arbitrary.'
It is not disputed by the first respondent that the appellant had raised objection to the nominations of respondents 3 to 8. We asked the learned Government Advocate to produce the records. Accordingly, he produced the records. We do not find any order-sheet maintained by the Returning Officer, in which the proceedings concerning the nominations, have been recorded. In this situation, in our view, the objection raised by the learned Counsel for respondents 3 to 8 that the order of the Returning Officer accepting the nomination papers is not challenged, is untenable. What is challenged in the Writ Petition is the acceptance of nominations of respondents 3 to 8 and this is evidenced by the final list of candidates (Annexure-E). In our opinion, in the absence of any proper record maintained by the Returning Officer, the only document which could be produced by the Writ Petitioner was Annexure-E. Therefore, we find no substance in the contention urged for respondents 3 to 8 to the effect that there is no appropriate prayer. It is also well settled principle for the exercise of jurisdiction under Article 226 that once the entitlement of the petitioner for the redressal of his grievance Is established, this Court can grant relief in such manner as the situation demands, in the interests of Justice.
26. In the result, we make the following order:
I. In W.A. No. 2487/1991:
(i) The Writ Appeal is allowed;
(ii) In reversal of the order made by the learned Judge, W.P. No. 16677 of 1991 is allowed;
(iii) The acceptance of nomination of respondents 3 to 8 for election to the Committee of Management of respondent-2, is set aside;
(iv) Consequently the final list of candidates (Annexure-E) prepared under Rule 14-A(3) of the Karnataka Co-operative Societies Rules in so far it relates to the inclusion of the names of respondents 3 to 8 in it, is set aside;
(v) All further steps taken by the first respondent including the poll held, are set aside;
(vi) The first respondent - Returning Officer is directed to proceed further in accordance with law and declare the result of the election on the basis that respondents 3 to 8 are not candidates for the election to the committee of the second respondent.
II. Writ Appeal No. 2489 of 1991 is dismissed.