Narayanappa Vs. Tahsildar and Returning Officer - Court Judgment

Excerpt:
(a) karnataka co-operative societies act, 1959 (karnataka act no. 11 of 1959 - section 20(1) proviso explanations 1 & 2 -- harmonious interpretation -- member cannot be both borrower-member and non-borrower member -- non-borrower becomes borrower-member by borrowing any loan 30 days before date of election -- non-borrower member is one who does not raise loan 30 days prior to date of election -- material date is date on which loan is obtained not date of application or sanction of loan.;(i) the explanations 1 and 2 have to be read harmoniously because explanation-1 deals with a non-borrower member of the bank ; and explanation-2 deals with a borrower member of the bank. a member cannot be both. a member must either be a borrower or a non-borrower member ... the only interpretation of sub-section (1) of section 20 of the act, as modified is that a non-borrower member can become a borrower member by borrowing any loan from the bank 30 days before the date on which election is scheduled to be field. as far as a non-borrower member is concerned, he continues to be a non-borrower if he does not raise the loan 30 days before the date on which the election is held. in such an event, there will not be any conflict between the two types of members nor such an interpretation enables a borrower-member to contest election from a non-borrower member constituency.;(ii) it is the date on which the loan is obtained on executing necessary documents that is material and not the date on which an application for grant of loan is filed or the date on which the loan is sanctioned.;(b) constitution of india - article 226 -- jurisdiction exercisable : against order accepting nomination paper upon undisputed facts : against order of returning officer being action of public servant appointed by statutory authority.;a writ petition under article 226 of the constitution of india can be entertained even against an order accepting the nomination paper provided the facts necessary to decide the case are not in dispute. a petition against an order passed by the returning officer appointed by the registrar of co-operative societies under rule 14 of the rules, can be entertained because he performs the functions, exercises the powers and discharges the duties under the act and the rules, even though those are of the committee of management, nevertheless they are the actions of a public servant appointed as returning officer by the statutory authority under the act and the rules. therefore, his actions are amenable to writ jurisdiction. - karnataka stamp act, 1957 section 3: [anand byrareddy,j] instruments chargeable with duty - petitioner praying to strike down and declare as unconstitutional and void the insertion/introduction of explanation to article 6 in schedule of act - petitioner had availed credit from a co-operative bank by offering title deeds of immovable property as collateral security for repayment of loan amounts without reducing terms of such transaction into form of a document no memorandum of deposit of title deeds - in view of amendment act no.7 of 2006 to article 6 of schedule respondent demanded 5% stamp duty on transaction - held, it is clear that the phrase employed in the explanation namely for the purpose of clause (i) notwithstanding anything contained in any judgment, decree or order of any authority would clearly indicate that the intention of the legislature was a blatant act to nullify the effect of the aforesaid judgments of this court as well as the apex court in holding that a transaction of the nature involved as in the present petition would attract stamp duty notwithstanding judicial pronouncements to the contrary. this has been frowned upon by the supreme court and it is held that such legislation would fall foul of the legislative competence of the state. though in the decided cases there were veiled attempts to nullify the judgment or order, in the resent case on hand, it is a positive declaration that notwithstanding a judgment or order of a court, the transaction would be treated as one which attracted the stamp duty. this is therefore legislation, which cannot be upheld or permitted to remain on the statute book. accordingly, the explanation to article 6 of the schedule to the karnataka stamp act, 1957 as incorporated by amendment act no. 7 of 2006 is hereby declared as unconstitutional and void and the all the same is struck down as being ultra vires. - it is also the case of the petitioner that in a case like this, irrespective of the alternative remedy available under section 70 of the act, jurisdiction under article 226 of the constitution, having regard to a division bench decision of this court in t. if the contention of respondent-2 is accepted, a member who borrows money on the date of filing the nomination paper, can even contest from non-borrower's as well as borrower's constituency because as per explanation-1, a member who till 30 days before the date on which election is held has not borrowed any money from the bank at any time is entitled to contest from non-borrower's constituency. both these objections raised by the learned counsel for the respondent are well founded. instead of allowing the election to take place and driving the aggrieved party to the necessity of filing an election petition which is bound to be allowed, it will be much better to correct at the earlier stage itself the error committed by the election officer so that waste of public time and money may be avoided. if the election is allowed to be held on the basis of acceptance of nomination paper, which on the undisputed facts is vitiated, instead of allowing the election to take place on the basis of such nomination paper and drive the aggrieved party to the necessity of filing an election petition, which is bound to be allowed, it is much better, and accords with justice, to correct at the earlier stage itself, the error committed by the election officer, to avoid waste of public time and money.orderk.a. swami, j.1. though this petition is listed in the category of preliminary hearing, by consent of learned counsel on both the sides, the case is heard for final disposal.2. in this petition under article 226 of the constitution, the petitioner has sought for quashing the order bearing no. nil, dated 9-12-1985 passed by the returning officer for holding elections to the bangarpet taluk primary cooperative agricultural and rural development bank ltd., bangarpet (respondent-1), produced as annexure-e. the petitioner has also sought for a direction to respondent-1 to proceed with the process of election in accordance with the calendar of events published by him vide annexure-a, excluding the candidature of respondent-2 for 'kuppanahalli' constituency.3. respondent-1 issued the calendar of events on 26-11-1985 as per annexure-a proposing to hold an election to the managing committee of the 3rd respondent society on 15-12-1985. 29-11-1985 was the date axed for publication of the list of defaulting members ; 7-12-1985 was the last date for filing the nomination papers ; 8-12-1985 was the last date for filing notice of election ; 9-12-1985 was the date for scrutiny and publication of the list of valid nominations; 10-12-1985 was the last date for withdrawal of nominations and notices of election and publication of the final list of contesting candidates; 11-12-1985 was the date for publication of model ballot paper; and 15-12-1985 was the date of poll, counting of votes and declaration of results of election.4. the petitioner and respondent-2 both filed their nominations from kuppanahalli borrower's constituency, which is constituency no. 2 as per annexure-a. the petitioner objected to the acceptance of the nomination paper of respondent 2 on the ground that he was not a borrower on the relevant date; therefore he was not entitled to contest from the borrower's constituency. respondent-1 by the impugned order dated 9-12-1985 overruled the objections of the petitioner and accepted the nomination paper of respondent-2.5. the facts necessary to appreciate the contentions raised by both sides, are as follows:respondent-2 filed the application for securing loan from respondent-3 on 30-8-1985. the loan was sanctioned on 22-11-1985 and respondent-2 drew loan amount on 29-11-1985. pursuant to that, his name has also been included in the borrowers list on 29-11-1985. in the background of these undisputed facts, the validity of acceptance of the nomination paper of respondent-2 by the impugned order-annexure 'e', dated 9-12-1985 is challenged in this petition.6. on behalf of the petitioner, it is contended that as per the proviso inserted in sub-sec (1) of section 20 of the karnataka co-operative societies act, 1959 (hereinafter referred to as the 'act'), by the order no. rdc 215 clm 83 (1), dated 16-12-1983 issued by the state government in exercise of the powers conferred by section 121 of the act, notwithstanding anything contained in the act, a borrower member shall have the right to vote, only for a candidate in the borrower's constituency and non-borrower member shall have the right to vote only for a candidate in the non-borrower's constituency, it is further contended that as per the explanation to the aforesaid proviso, 'a non-borrower member' means, a member who till thirty days before the date on which election is held, has not borrowed any money from the bank. on the basis of this explanation, it is contended that a member of the bank in order to contest the election from the borrower's constituency, has to become a borrower member before 30 days prior to the date fixed for election; that in the instant case, respondent-2 obtained the loan amount from respondent-3 only on 29-11-1985 and whereas, the election was scheduled to be held on 15-12-1985 and as such, he was not a borrower on the relevant date; therefore he was not eligible to contest from the borrower's constituency. it is also the case of the petitioner that in a case like this, irrespective of the alternative remedy available under section 70 of the act, jurisdiction under article 226 of the constitution, having regard to a division bench decision of this court in t.h. saganappa v. t. r. srinivasa murthy and ors., : air1981kant114 can be exercised.7. on the contrary, it is contended on behalf of respondent-2 by learned counsel sri n.k. gupta; and by sri somayaji, learned government pleader appearing for respondent-1, that there is an alternative remedy available under section 70 of the act, and as the election process has commenced, interference with the election process in exercise of jurisdiction under article 226 of the constitution is not permissible; that though the election is conducted by the returning officer appointed by the registrar of co-operative societies as per rule 14 of the karnataka co-operative societies rules, 1960 (hereinafter referred to as the 'rules') in effect, the returning officer exercises the powers of the committee of management of a co-operative society, hence a writ under article 226 of the constitution does not lie. on merits, it is further contended that a member can become a borrower member at any time and therefore it is not necessary that one must borrow money 30 days prior to the date of election; that in the instant case, respondent-2 had borrowed money on 29th november, 1985 from respondent-3 and the date of poll was 15th december, 1985 i.e., within 30 days from the date of election, therefore, no interference is called for.8. having regard to the aforesaid contentions, the following points arise for consideration :1) whether a member of a taluka primary co-operative agricultural and rural development bank can become a borrower at any time before filing the nomination paper?2) whether the order accepting the nomination paper of respondent-2 is valid in law?3) whether jurisdiction under article 226 of the constitution, can be exercised against the order accepting the nomination paper?9. point no. 1: sub-section (1) of section 20 of the act, is relevant for the purpose of deciding this point. in exercise of the powers conferred by section 121 of the act, the state government has inserted further proviso and an explanation to sub-section (1) of section 20 of the act, in its application to the primary co-operative agricultural and rural development banks by the order no rdc 215 clm 83(1), dated 16-12-1983 published in the karnataka gazette (extraordinary), dated 16-12-1983. again, by another order dated 21-11-1984 bearing no. rdc 215 clm 83(1) issued in exercise of its power under section 121 of the act, the state government has modified the explanation inserted by the aforesaid government order dated 16-12-1983 and numbered it as explanation no. 1. in addition to this, it has inserted one more explanation as explanation no. 2. thus, section 20 of the act, as on to-day in its application to primary co-operative agricultural and rural development banks, is as follows :'20. votes of members.-(1) no member of a society shall have more than one vote in the affairs of the co-operative society.provided that where the state government is a member of a co-operative society, each person nominated or deemed to have been nominated by the state government on the committee of such co-operative society shall have one vote.provided further that notwithstanding anything contained in this act a borrower member shall have the right to vote only for a candidate in the borrower's constituency and non-borrower member shall have the right to vote only for a candidate in the borrower's constituency.explanation : 1. a non-borrower member means a member who till 30 days before the date on which election is held has not borrowed any money from the bank at any time.2. a borrower member means, a member who has borrowed any loan from the bank at any time and includes a member who has borrowed and repaid.'10. if the contention of respondent-2 that a member of the primary co-operative agricultural and rural development bank can become a borrower member at any time before filing the nomination paper is accepted, explanation-1 to sub-section (1) of section 20 of the act loses all its efficacy. the explanations 1 and 2 have to be read harmoniously because explanation-1 deals with a non-borrower member of the bank; and explanation no. 2 deals with a borrower member of the bank. a member cannot be both. a member must either be a borrower or a non-borrower member. if the contention of respondent-2 is accepted, a member who borrows money on the date of filing the nomination paper, can even contest from non-borrower's as well as borrower's constituency because as per explanation-1, a member who till 30 days before the date on which election is held has not borrowed any money from the bank at any time is entitled to contest from non-borrower's constituency. at the same time, as per explanation-2, a borrower member is one who has borrowed any loan from the bank at any time and includes a member who has borrowed and repaid. such an interpretation apart from rendering explanation no. 1 superfluous and nugatory leads to uncertainties and results in discrimination among the members inasmuch as it enables a member to contest from both the constituencies even though he is not, in any way, different from other members of the bank. such an interpretation should be avoided all the words of a statute must be given their due meaning. an interpretation which results in rendering a part of a statute otiose introducing uncertainty and discrimination, must be avoided. explanations deal with the members of the bank. they have to be read harmoniously. the only interpretation of sub-section (1) of section 20 of the act, as modified, is that a non-borrower member can become a borrower member by borrowing any loan from the bank 30 days before the date on which election is scheduled to be held. as far as non-borrower is concerned, he continues to be a non-borrower if he does not raise the loan 30 days before the date on which the election is held. in such an event, there will not be any conflict between the two types of members nor such an interpretation enables a borrower member to contest election from a non-borrower member constituency. therefore, it is not possible to accept the contention of respondent-2.11. in the instant case, as it is already stated, the facts are not in dispute. respondent-2 has borrowed loan on 29-11-1985. the fact that he had applied for loan earlier to 29-11-1985 i.e., on 30-3-1985, is not a deciding factor it is the date on which the loan is obtained on executing necessary documents that is material and not the date on which an application for grant of loan is filed or the date on which the loan is sanctioned. therefore, the loan that is obtained by respondent-2 is within 30 days from the date fixed for the election. as such, he is not eligible to contest from the borrower's constituency, point no. 1 is answered accordingly.12. point no 2 : having regard to the finding recorded on point no. 1, the order accepting the nomination paper of respondent-2 is unsustainable in law. however, it is contended that the name of respondent-2 is in the borrowers list. it is not disputed by the petitioner and also by learned government pleader that the name of respondent-2 appears in the borrowers' list. but the facts leading to the entry of respondent-2's name in the borrowers' list, as stated above, are not in dispute. therefore, he could not have become a borrower member on 29-11-1985 for the purpose of contesting the election in question from the borrower's constituency. hence, the fact that his name is in the borrowers list is of no consequence having regard to explanations 1 and 2 to subsection (1) of section 20 of the act. point no. 2 is answered in the negative.13.1) point no. 3 : on this point, both the sides have put in maximum efforts. this point involves several contentions. i will take up one by one. it is contended that though the returning officer is appointed by the registrar in the case of societies falling under rule 14(b)(1) of the rules, he only exercises the powers conferred on the committee of management of a co-operative society as enumerated in rule 14(a) of the rules; therefore, virtually he performs the functions of the committee of management of a co-operative society, hence the order passed by him is not amenable to article 226 of the constitution. in support of this plea, learned government pleader and learned counsel for respondent-2 have relied upon a division bench decision of this court in ideal homes co-operative building society v. p. i. joseph, 1975(2) klj 312. that was a case in which the committee of management of a co-operative society passed a resolution. it was challenged in a writ petition. following the earlier decision of this court in srinivasa iyengar v. deputy registrar of co-operative socities, mandya, w. a. no. 264/74 dd. 17-4-1984 it was held that petition under article 226 of the constitution could not be entertained against the non-statutory authorities or bodies. a reliance was also placed on a decision of this court in khoday brewing distilling industries (p) ltd. v. state of karnataka,4 in that case, an officer of the government was lent to a co-operative society to function as an administrator who entered into a contract with a private party. the contract was tried to be enforced through a writ petition under article 226 of the constitution. a contention was raised on behalf of the respondent therein that a co-operative society was neither a statutory body nor a state undertaking ; therefore the petition under article 226 of the constitution would not lie. this contention was accepted and held that a co-operative society was a non-statutory body and merely because an officer of the government was lent, it did not transform or it did not have he effect of transforming into a state undertaking. accortdingly, the writ petition was dismissed.13.2) it, is very pertinent to notice that in both the aforesaid decisions, what was challenged was the action of a cooperative society. in the first decision, ideal homes' case, : air1981kant114 it was the resolution passed by a committee of management of a society that was questioned; and in the second decision, khoday's case, 1981(2) klj 533 it was the action of the officer lent by the government regarding entering into a contract with a private party was questioned. in both these decisions, this court was not concerned with the question as to whether a writ under article 226 of the constitution could be entertained against the order passed by an official of the government appointed by the registrar of co-operative societies in exercise of his powers under the act, and the rules, for holding an election. such officer exercises powers, performs functions and discharges his duties under the act and the rules the validity of the order passed by him in exercise of his power under the act or the rules can be challenged under article 226 of the constitution. therefore, it is not possible to hold that the aforesaid two decisions govern the point under consideration.13.3) however, reliance is also placed on a decision of this court in writ petition nos.. 1245, 1245(a) and 1245(b) of 19845 in this decision, this, : air1981kant114 question has been specifically left open. therefore, it does not serve as a precedent. similarly in w.p. 14973 of 1985, decided on 15-9-19856, the question has been specifically left open.13.4) reliance is also placed on a decision of this court in d. krishnappa v. state of karnataka & anr., w.p. no. 12846/84 dd. 24-6-1985 paras 7 and 8 of that decision, are as follows :'7. the learned counsel for the respondent submitted that the order rejecting nomination paper of the petitioner cannot be set aside in this writ petition for the reasons the other persons who were candidates at the election had not been impleaded as respondents to the petition and further writ petition does not he against the order of the returning officer rejecting the nomination of the petitioner in an election to a co-operative society. both these objections raised by the learned counsel for the respondent are well founded. but, the learned counsel for the petitioner made it clear that the petitioner was not interested in getting the order of rejection of nomination paper set aside but was only questioning the constitutional validity of new section 30 which brought about such ineligibility against the petitioner as he would be prevented from contesting the election or being co-opted as a member of the managing committee.8. after hearing the counsel on both sides as indicated earlier, there is no question of going into the question of constitutional validity of new section 30 as it does not impose any disqualification against members of managing committees removed earlier. the petitioner is entitled only to a declaration that the disqualification imposed by the proviso to sub-section (3) of section 30 as introduced by the act no. 5 of 1984, does not apply to the case of the petitioner.'from what is stated above, it is clear that the validity of the order rejecting the nomination paper was not pressed for consideration. as a result thereof, it was not decided. however, a passing observation was made to the effect that there was some force in the contention that a writ petition did not lie against the order of the returning officer rejecting the nomination paper. as the very validity of that order was not challenged, the aforesaid observation made in that decision cannot be taken as a precedent since it was not at all necessary for the purpose of deciding that case.13.5) reliance is also placed on a decision of this court in v. c. thimmarayappa v. returning officer, 1975(2) klj sh. n. item no. 51 in which jagannatha shetty, j. (as he then was), has also held that the returning officer is a statutory authority and the orders impugned therein are made in exercise of powers conferred under rule 16 of the rules ; hence petitions under article 226 of the constitution, are maintainable. a division bench decision of this court in srinivasa iyengar's case, w. a. no. 264/74 dd. 17-4-1984 has also been distinguished.13.6) lastly reliance is placed on the decisions of the supreme court in nannies mal v. hira mal, : [1976]1scr809 and mohinder singh gill & anr. v. the chief election commissioner, new delhi & ors, : [1978]2scr272 and of this court in fakirappa yellappa kali v. deputy commissioner, 1979(1) klj 153. the decisions rendered in nannies mal's case, : [1976]1scr809 (supra) and fakirappa's case have been considered by this court in saganappa's case, : air1981kant114 in which it has been held as follows :'4. in this appeal, shri h. subramanya jois, learned counsel for the appellant (respondent 5 in the writ petition), contended that as there was an alternative remedy by way of an election petition provided under rule 17 of the rules, the learned singh judge was not justified in exercising the jurisdiction under article 226 of the constitution and in interfering with the decision of the election officer. in support of his contention, shri subramanya jois strongly relied on the decision of kama jois, j, in fakirappa yellappa kali v. deputy commissioner (1979) 1 kar. l. j. 153). there, his lordship held that the illegal acceptance of a nomination paper, did not warrant the exercise of the jurisdiction under article 226(1)(b) of the constitution. that decision was based on the language of article 226 of the constitution, as it stood after the 42nd amendment to the constitution. that article has been further amended by the 44th amendment and the words 'no injury of a substantial nature' which occurred in sub-clause (b) of clause (1) of that article as it stood after the 42nd amendment, are no longer in that article after it was amended by the 44th amendment. hence, that decision is of no assistance to the present case.5. sri subramanya jois next relied on the observations of the supreme court in nannies mal v. hira mal : [1976]1scr809 to the effect that an election to the office of the president of a municipal board could be challenged only according to the procedure prescribed by the u p. municipalities act and that is, by means of an election petition presented in accordance with the provisions of that act and in no other way. in para-5 of the judgment, the supreme court itself has observed 'whether there can be any extraordinary circumstances in which the high courts could exercise their power under article 226 in relation to elections, is not now necessary to consider,' thus, there is no unqualified statement of law by the supreme court that an election can never be challenged in a petition under article 226 of the constitution.6. lastly it was contended by shri subramanya jois that there was no extraordinary circumstance to warrant the exercise of power of this court under article 226 of the constitution.7. in the present case, the illegality in accepting the nomination paper of respondent 5, is obvious and does not require any investigation. if the election were to be held on the basis of acceptance of that nomination paper, the election will be vitiated. instead of allowing the election to take place and driving the aggrieved party to the necessity of filing an election petition which is bound to be allowed, it will be much better to correct at the earlier stage itself the error committed by the election officer so that waste of public time and money may be avoided. hence, we are unable to accept the contention of shri subramanya jois that the learned single judge erred in exercising his jurisdiction under article 226 of the constitution and in interfering with the acceptance of the nomination papers by the election officer.'thus, the decision in fakirappa's case cannot be taken as an authority on the point that no writ petition is maintainable against the order made by the returning officer accepting the nomination paper because in saganappa's case, : air1981kant114 it is held that a writ petition is maintainable, and it all depends upon the facts and circumstances of each case. if the election is allowed to be held on the basis of acceptance of nomination paper, which on the undisputed facts is vitiated, instead of allowing the election to take place on the basis of such nomination paper and drive the aggrieved party to the necessity of filing an election petition, which is bound to be allowed, it is much better, and accords with justice, to correct at the earlier stage itself, the error committed by the election officer, to avoid waste of public time and money.13.7) in the instant case, if the acceptance of respondent's nomination paper is held as invalid, then no election need be held because the petitioner is the only candidate who has to be declared as elected. therefore, exercise of writ jurisdiction under article 226 of the constitution against the order of acceptance of the nomination paper of respondent-2 is warranted and it is fully justified. so far as mohinder singh gill's case, : [1978]2scr272 is concerned, it is decided under the representation of people act. therefore, it cannot be held to govern the present situation. accordingly, point no. 3 is answered as under :a writ petition under article 226 of the constitution of india can be entertained even against an order accepting the nomination paper provided the facts necessary to decide the case are not in dispute. a petition against an order passed by the returning officer appointed by the registrar of cooperative societies under rule 14 of the rules, can be entertained because he performs the functions, exercises the powers and discharges the duties under the act and the rules, even though those are of the committee of management of respondent-3 nevertheless they are the actions of a public servant appointed as returning officer by the statutory authority under the act and the rules. therefore, his actions are amenable to writ jurisdiction.12. for the reasons stated above, the writ petition is allowed. the order dated 9th december 1985 passed by the returning officer (respondent-1) produced as annexure-e, accepting the nomination paper of respondent-2 for contesting election to the board of management of respondent-3 (society), is hereby quashed. respondent-1 is directed to proceed with the process of election in accordance with the calendar of events published by him excluding the candidature of respondent-2 from kuappanahally borrower's constituency to the committee of management of respondent-3 (society).

Judgment:
ORDER

K.A. Swami, J.

1. Though this petition is listed in the category of Preliminary hearing, by consent of learned Counsel on both the sides, the case is heard for final disposal.

2. In this petition under Article 226 of the Constitution, the petitioner has sought for quashing the order bearing No. Nil, dated 9-12-1985 passed by the Returning Officer for holding elections to the Bangarpet Taluk Primary Cooperative Agricultural and Rural Development Bank Ltd., Bangarpet (respondent-1), produced as Annexure-E. The petitioner has also sought for a direction to respondent-1 to proceed with the process of election in accordance with the calendar of events published by him vide Annexure-A, excluding the candidature of respondent-2 for 'Kuppanahalli' constituency.

3. Respondent-1 issued the calendar of events on 26-11-1985 as per Annexure-A proposing to hold an election to the Managing Committee of the 3rd respondent Society on 15-12-1985. 29-11-1985 was the date axed for publication of the list of defaulting members ; 7-12-1985 was the last date for filing the nomination papers ; 8-12-1985 was the last date for filing notice of election ; 9-12-1985 was the date for scrutiny and publication of the list of valid nominations; 10-12-1985 was the last date for withdrawal of nominations and notices of election and publication of the final list of contesting candidates; 11-12-1985 was the date for publication of model ballot paper; and 15-12-1985 was the date of Poll, counting of votes and declaration of results of election.

4. The petitioner and respondent-2 both filed their nominations from Kuppanahalli Borrower's Constituency, which is Constituency No. 2 as per Annexure-A. The petitioner objected to the acceptance of the nomination paper of respondent 2 on the ground that he was not a borrower on the relevant date; therefore he was not entitled to contest from the Borrower's Constituency. Respondent-1 by the impugned order dated 9-12-1985 overruled the objections of the petitioner and accepted the nomination paper of respondent-2.

5. The facts necessary to appreciate the contentions raised by both sides, are as follows:

Respondent-2 filed the application for securing loan from respondent-3 on 30-8-1985. The loan was sanctioned on 22-11-1985 and respondent-2 drew loan amount on 29-11-1985. Pursuant to that, his name has also been included in the borrowers list on 29-11-1985. In the background of these undisputed facts, the validity of acceptance of the nomination paper of respondent-2 by the impugned order-Annexure 'E', dated 9-12-1985 is challenged in this petition.

6. On behalf of the petitioner, it is contended that as per the proviso inserted in sub-sec (1) of Section 20 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as the 'Act'), by the order No. RDC 215 CLM 83 (1), dated 16-12-1983 issued by the State Government in exercise of the powers conferred by Section 121 of the Act, notwithstanding anything contained in the Act, a borrower member shall have the right to vote, only for a candidate in the borrower's constituency and non-borrower member shall have the right to vote only for a candidate in the non-borrower's constituency, It is further contended that as per the explanation to the aforesaid proviso, 'A non-borrower member' means, a member who till thirty days before the date on which election is held, has not borrowed any money from the Bank. On the basis of this explanation, it is contended that a member of the Bank in order to contest the election from the borrower's Constituency, has to become a borrower member before 30 days prior to the date fixed for election; that in the instant case, respondent-2 obtained the loan amount from Respondent-3 only on 29-11-1985 and whereas, the election was scheduled to be held on 15-12-1985 and as such, he was not a borrower on the relevant date; therefore he was not eligible to contest from the borrower's constituency. It is also the case of the petitioner that in a case like this, irrespective of the alternative remedy available under Section 70 of the Act, jurisdiction under Article 226 of the Constitution, having regard to a Division Bench decision of this Court in T.H. Saganappa v. T. R. Srinivasa Murthy and Ors., : AIR1981Kant114 can be exercised.

7. On the contrary, it is contended on behalf of respondent-2 by learned Counsel Sri N.K. Gupta; and by Sri Somayaji, learned Government Pleader appearing for respondent-1, that there is an alternative remedy available under Section 70 of the Act, and as the election process has commenced, interference with the election process in exercise of jurisdiction under Article 226 of the Constitution is not permissible; that though the election is conducted by the Returning Officer appointed by the Registrar of Co-operative Societies as per Rule 14 of the Karnataka Co-operative Societies Rules, 1960 (hereinafter referred to as the 'Rules') in effect, the Returning Officer exercises the powers of the Committee of Management of a co-operative society, hence a writ under Article 226 of the Constitution does not lie. On merits, it is further contended that a member can become a borrower member at any time and therefore it is not necessary that one must borrow money 30 days prior to the date of election; that in the instant case, Respondent-2 had borrowed money on 29th November, 1985 from Respondent-3 and the date of poll was 15th December, 1985 i.e., within 30 days from the date of election, therefore, no interference is called for.

8. Having regard to the aforesaid contentions, the following points arise for consideration :

1) Whether a member of a Taluka Primary Co-operative Agricultural and Rural Development Bank can become a borrower at any time before filing the nomination paper?

2) Whether the order accepting the nomination paper of Respondent-2 is valid in law?

3) Whether jurisdiction under Article 226 of the Constitution, can be exercised against the order accepting the nomination paper?

9. POINT NO. 1: Sub-section (1) of Section 20 of the Act, is relevant for the purpose of deciding this point. In exercise of the powers conferred by Section 121 of the Act, the State Government has inserted further proviso and an Explanation to Sub-section (1) of Section 20 of the Act, in its application to the Primary Co-operative Agricultural and Rural Development Banks by the Order No RDC 215 CLM 83(1), dated 16-12-1983 published in the Karnataka Gazette (Extraordinary), dated 16-12-1983. Again, by another order dated 21-11-1984 bearing No. RDC 215 CLM 83(1) issued in exercise of its power under Section 121 of the Act, the State Government has modified the Explanation inserted by the aforesaid Government Order dated 16-12-1983 and numbered it as Explanation No. 1. In addition to this, it has inserted one more Explanation as Explanation No. 2. Thus, Section 20 of the Act, as on to-day in its application to Primary Co-operative Agricultural and Rural Development Banks, is as follows :

'20. VOTES OF MEMBERS.-(1) No member of a society shall have more than one vote in the affairs of the Co-operative society.

Provided that where the State Government is a member of a co-operative society, each person nominated or deemed to have been nominated by the State Government on the committee of such co-operative society shall have one vote.

Provided further that notwithstanding anything contained in this Act a borrower member shall have the right to vote only for a candidate in the borrower's constituency and non-borrower member shall have the right to vote only for a candidate in the borrower's constituency.

EXPLANATION : 1. A non-borrower member means a member who till 30 days before the date on which election is held has not borrowed any money from the bank at any time.

2. A borrower member means, a member who has borrowed any loan from the Bank at any time and includes a member who has borrowed and repaid.'

10. If the contention of respondent-2 that a member of the Primary Co-operative Agricultural and Rural Development Bank can become a borrower member at any time before filing the nomination paper is accepted, Explanation-1 to Sub-section (1) of Section 20 of the Act loses all its efficacy. The Explanations 1 and 2 have to be read harmoniously because Explanation-1 deals with a non-borrower member of the Bank; and Explanation No. 2 deals with a borrower member of the Bank. A member cannot be both. A member must either be a borrower or a non-borrower member. If the contention of Respondent-2 is accepted, a member who borrows money on the date of filing the nomination paper, can even contest from non-borrower's as well as borrower's constituency because as per Explanation-1, a member who till 30 days before the date on which election is held has not borrowed any money from the Bank at any time is entitled to contest from non-borrower's constituency. At the same time, as per Explanation-2, a borrower member is one who has borrowed any loan from the Bank at any time and includes a member who has borrowed and repaid. Such an interpretation apart from rendering Explanation No. 1 superfluous and nugatory leads to uncertainties and results in discrimination among the members inasmuch as it enables a member to contest from both the constituencies even though he is not, in any way, different from other members of the Bank. Such an interpretation should be avoided All the words of a statute must be given their due meaning. An interpretation which results in rendering a part of a statute otiose introducing uncertainty and discrimination, must be avoided. Explanations deal with the members of the Bank. They have to be read harmoniously. The only interpretation of Sub-section (1) of Section 20 of the Act, as modified, is that a non-borrower member can become a borrower member by borrowing any loan from the Bank 30 days before the date on which election is scheduled to be held. As far as non-borrower is concerned, he continues to be a non-borrower if he does not raise the loan 30 days before the date on which the election is held. In such an event, there will not be any conflict between the two types of members nor such an interpretation enables a borrower member to contest election from a non-borrower member constituency. Therefore, it is not possible to accept the contention of respondent-2.

11. In the instant case, as it is already stated, the facts are not in dispute. Respondent-2 has borrowed loan on 29-11-1985. The fact that he had applied for loan earlier to 29-11-1985 i.e., on 30-3-1985, is not a deciding factor It is the date on which the loan is obtained on executing necessary documents that is material and not the date on which an application for grant of loan is filed or the date on which the loan is sanctioned. Therefore, the loan that is obtained by Respondent-2 is within 30 days from the date fixed for the election. As such, he is not eligible to contest from the Borrower's Constituency, Point No. 1 is answered accordingly.

12. POINT NO 2 : Having regard to the finding recorded on Point No. 1, the order accepting the nomination paper of Respondent-2 is unsustainable in law. However, it is contended that the name of Respondent-2 is in the borrowers list. It is not disputed by the petitioner and also by Learned Government Pleader that the name of Respondent-2 appears in the borrowers' list. But the facts leading to the entry of Respondent-2's name in the borrowers' list, as stated above, are not in dispute. Therefore, he could not have become a borrower member on 29-11-1985 for the purpose of contesting the election in question from the Borrower's constituency. Hence, the fact that his name is in the borrowers list is of no consequence having regard to Explanations 1 and 2 to Subsection (1) of Section 20 of the Act. Point No. 2 is answered in the negative.

13.1) POINT NO. 3 : On this point, both the sides have put in maximum efforts. This point involves several contentions. I will take up one by one. It is contended that though the Returning Officer is appointed by the Registrar in the case of Societies falling under Rule 14(b)(1) of the Rules, he only exercises the powers conferred on the Committee of Management of a co-operative society as enumerated in Rule 14(a) of the Rules; therefore, virtually he performs the functions of the Committee of Management of a Co-operative society, hence the order passed by him is not amenable to Article 226 of the Constitution. In support of this plea, learned Government Pleader and learned Counsel for respondent-2 have relied upon a Division Bench decision of this Court in Ideal Homes Co-operative Building Society v. P. I. Joseph, 1975(2) KLJ 312. That was a case in which the Committee of Management of a co-operative society passed a resolution. It was challenged in a Writ Petition. Following the earlier decision of this Court in Srinivasa Iyengar v. Deputy Registrar of Co-operative Socities, Mandya, W. A. No. 264/74 DD. 17-4-1984 it was held that petition under Article 226 of the Constitution could not be entertained against the non-statutory authorities or bodies. A reliance was also placed on a decision of this Court in Khoday Brewing Distilling Industries (P) Ltd. v. State of Karnataka,4 In that case, an officer of the Government was lent to a Co-operative society to function as an Administrator who entered into a contract with a private party. The contract was tried to be enforced through a writ petition under Article 226 of the Constitution. A contention was raised on behalf of the respondent therein that a co-operative society was neither a statutory body nor a State undertaking ; therefore the petition under Article 226 of the Constitution would not lie. This contention was accepted and held that a Co-operative Society was a non-statutory body and merely because an officer of the Government was lent, it did not transform or it did not have he effect of transforming into a State undertaking. Accortdingly, the writ petition was dismissed.

13.2) It, is very pertinent to notice that in both the aforesaid decisions, what was challenged was the action of a Cooperative society. In the first decision, Ideal Homes' case, : AIR1981Kant114 it was the resolution passed by a Committee of Management of a Society that was questioned; and in the second decision, Khoday's case, 1981(2) KLJ 533 it was the action of the officer lent by the Government regarding entering into a contract with a private party was questioned. In both these decisions, this Court was not concerned with the question as to whether a writ under Article 226 of the Constitution could be entertained against the order passed by an official of the Government appointed by the Registrar of Co-operative Societies in exercise of his powers under the Act, and the Rules, for holding an election. Such officer exercises powers, performs functions and discharges his duties under the Act and the Rules The validity of the order passed by him in exercise of his power under the Act or the Rules can be challenged under Article 226 of the Constitution. Therefore, it is not possible to hold that the aforesaid two decisions govern the point under consideration.

13.3) However, reliance is also placed on a decision of this Court in Writ Petition Nos.. 1245, 1245(a) and 1245(b) of 19845 In this decision, this, : AIR1981Kant114 question has been specifically left open. Therefore, it does not serve as a precedent. Similarly in W.P. 14973 of 1985, decided on 15-9-19856, the question has been specifically left open.

13.4) Reliance is also placed on a decision of this Court in D. Krishnappa v. State of Karnataka & Anr., W.P. No. 12846/84 DD. 24-6-1985 Paras 7 and 8 of that decision, are as follows :

'7. The Learned Counsel for the respondent submitted that the order rejecting nomination paper of the petitioner cannot be set aside in this Writ Petition for the reasons the other persons who were candidates at the election had not been impleaded as respondents to the Petition and further Writ Petition does not He against the order of the returning officer rejecting the nomination of the petitioner in an election to a co-operative society. Both these objections raised by the Learned Counsel for the respondent are well founded. But, the Learned Counsel for the petitioner made it clear that the petitioner was not interested in getting the order of rejection of nomination paper set aside but was only questioning the constitutional validity of New Section 30 which brought about such ineligibility against the petitioner as he would be prevented from contesting the election or being co-opted as a member of the Managing Committee.

8. After hearing the Counsel on both sides as indicated earlier, there is no question of going into the question of constitutional validity of New Section 30 as it does not impose any disqualification against members of Managing Committees removed earlier. The petitioner is entitled only to a declaration that the disqualification imposed by the proviso to Sub-section (3) of Section 30 as introduced by the Act No. 5 of 1984, does not apply to the case of the petitioner.'

From what is stated above, it is clear that the validity of the order rejecting the nomination paper was not pressed for consideration. As a result thereof, it was not decided. However, a passing observation was made to the effect that there was some force in the contention that a writ petition did not lie against the order of the Returning Officer rejecting the nomination paper. As the very validity of that order was not challenged, the aforesaid observation made in that decision cannot be taken as a precedent since it was not at all necessary for the purpose of deciding that case.

13.5) Reliance is also placed on a decision of this Court in V. C. Thimmarayappa v. Returning Officer, 1975(2) KLJ Sh. N. Item No. 51 in which Jagannatha Shetty, J. (as he then was), has also held that the Returning Officer is a statutory authority and the orders impugned therein are made in exercise of powers conferred under Rule 16 of the Rules ; hence petitions under Article 226 of the Constitution, are maintainable. A Division Bench decision of this Court in Srinivasa Iyengar's case, W. A. No. 264/74 DD. 17-4-1984 has also been distinguished.

13.6) Lastly reliance is placed on the decisions of the Supreme Court in Nannies Mal v. Hira Mal, : [1976]1SCR809 and Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & ors, : [1978]2SCR272 and of this Court in Fakirappa Yellappa Kali v. Deputy Commissioner, 1979(1) KLJ 153. The decisions rendered in Nannies Mal's case, : [1976]1SCR809 (supra) and Fakirappa's case have been considered by this Court in Saganappa's case, : AIR1981Kant114 in which it has been held as follows :

'4. In this appeal, Shri H. Subramanya Jois, Learned Counsel for the appellant (Respondent 5 in the Writ Petition), contended that as there was an alternative remedy by way of an election petition provided under Rule 17 of the Rules, the Learned Singh Judge was not justified in exercising the jurisdiction under Article 226 of the Constitution and in interfering with the decision of the Election Officer. In support of his contention, Shri Subramanya Jois strongly relied on the decision of Kama Jois, J, in Fakirappa Yellappa Kali v. Deputy Commissioner (1979) 1 Kar. L. J. 153). There, his Lordship held that the illegal acceptance of a nomination paper, did not warrant the exercise of the jurisdiction under Article 226(1)(b) of the Constitution. That decision was based on the language of Article 226 of the Constitution, as it stood after the 42nd Amendment to the Constitution. That Article has been further amended by the 44th Amendment and the words 'no injury of a substantial nature' which occurred in Sub-clause (b) of Clause (1) of that Article as it stood after the 42nd Amendment, are no longer in that Article after it was amended by the 44th Amendment. Hence, that decision is of no assistance to the present case.

5. Sri Subramanya Jois next relied on the observations of the Supreme Court in Nannies Mal v. Hira Mal : [1976]1SCR809 to the effect that an election to the office of the President of a Municipal Board could be challenged only according to the procedure prescribed by the U P. Municipalities Act and that is, by means of an election petition presented in accordance with the provisions of that Act and in no other way. In para-5 of the judgment, the Supreme Court itself has observed 'whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections, is not now necessary to consider,' Thus, there is no unqualified statement of law by the Supreme Court that an election can never be challenged in a petition under Article 226 of the Constitution.

6. Lastly it was contended by Shri Subramanya Jois that there was no extraordinary circumstance to warrant the exercise of power of this Court under Article 226 of the Constitution.

7. In the present case, the illegality in accepting the nomination paper of Respondent 5, is obvious and does not require any Investigation. If the election were to be held on the basis of acceptance of that nomination paper, the election will be vitiated. Instead of allowing the election to take place and driving the aggrieved party to the necessity of filing an election petition which is bound to be allowed, it will be much better to correct at the earlier stage itself the error committed by the Election Officer so that waste of public time and money may be avoided. Hence, we are unable to accept the contention of Shri Subramanya Jois that the Learned Single Judge erred in exercising his jurisdiction under Article 226 of the Constitution and in interfering with the acceptance of the nomination papers by the Election Officer.'

Thus, the decision in Fakirappa's case cannot be taken as an authority on the point that no Writ Petition is maintainable against the order made by the Returning Officer accepting the nomination paper because in Saganappa's case, : AIR1981Kant114 it is held that a Writ Petition is maintainable, and it all depends upon the facts and circumstances of each case. If the election is allowed to be held on the basis of acceptance of nomination paper, which on the undisputed facts is vitiated, instead of allowing the election to take place on the basis of such nomination paper and drive the aggrieved party to the necessity of filing an election petition, which is bound to be allowed, it is much better, and accords with justice, to correct at the earlier stage itself, the error committed by the election officer, to avoid waste of public time and money.

13.7) In the instant case, if the acceptance of Respondent's nomination paper is held as invalid, then no election need be held because the petitioner is the only candidate who has to be declared as elected. Therefore, exercise of writ jurisdiction under Article 226 of the Constitution against the order of acceptance of the nomination paper of Respondent-2 is warranted and it is fully justified. So far as Mohinder Singh Gill's case, : [1978]2SCR272 is concerned, it is decided under the Representation of People Act. Therefore, it cannot be held to govern the present situation. Accordingly, Point No. 3 is answered as under :

A Writ Petition under Article 226 of the Constitution of India can be entertained even against an order accepting the nomination paper provided the facts necessary to decide the case are not in dispute. A Petition against an order passed by the Returning Officer appointed by the Registrar of Cooperative Societies under Rule 14 of the Rules, can be entertained because he performs the functions, exercises the powers and discharges the duties under the Act and the Rules, even though those are of the Committee of Management of respondent-3 nevertheless they are the actions of a public servant appointed as Returning Officer by the statutory authority under the Act and the Rules. Therefore, his actions are amenable to writ jurisdiction.

12. For the reasons stated above, the Writ Petition is allowed. The order dated 9th December 1985 passed by the Returning Officer (Respondent-1) produced as Annexure-E, accepting the nomination paper of respondent-2 for contesting election to the Board of Management of respondent-3 (Society), is hereby quashed. Respondent-1 is directed to proceed with the process of election in accordance with the Calendar of events published by him excluding the candidature of respondent-2 from Kuappanahally Borrower's Constituency to the Committee of Management of respondent-3 (Society).