T.S. Patil S/O. Shankaragouda Patil Vs. the Joint Registrar of Co-operative Societies, Belgaum Sub-division and ors. - Court Judgment

Excerpt:
(a) co-operative societies act, 1959 - election to a co-operative society-setting aside of-powers of the arbitrator-held, although there are no statutory provisions corresponding to section 100 and 101 of the representation of the people act, 1951 setting out the grounds on which the election to a co-operative society can be set aside, it is open to the arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law-on facts, held, in appropriate cases, the arbitrator is competent to declare the petitioner or another candidate elected.(b) representation of the people act, 1951 section 101 - grounds for which a candidate other than the returned candidate may be declared to have been elected-on facts, held, firstly the high court should be of opinion that in fact the petitioner or such other candidate received a majority of the valid votes-secondly, the high court should be of opinion that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes-furtker held, the present case is not a case where the returned candidate obtained votes by corrupt practices and therefore, the question of discarding those notes for deciding the returned candidate does not arise.writ appeal is allowed. - section 101; [cyriac joseph cj & k. sreedhar rao, j] grounds for which a candidate other than the returned candidate may be declared to have been elected held, firstly, the high court should be of opinion that in fact the petitioner or such other candidate received a majority of the valid votes; secondly, the high court should be of opinion that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes. in the present case it is not a case where the returned candidate obtained votes by corrupt practices and therefore, the question of discarding those votes for deciding the returned candidate does not arise. -- karnataka co-operative societies act, 1959. [k.a. no. 11/1959]. section 70: powers of the arbitrator election dispute held, although there are no statutory provisions corresponding to sections 100 and 101 of the representation of people act, 1951 setting out the grounds on which the election to a co-operative society can be set aside, it is open to the arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law. in appropriate cases, the arbitrator is competent to declare the petitioner or another candidate elected. - state of karnataka ilr1991kar577 .we are inclined to accept the above contention and agree with the view taken by this court in the above mentioned decisions that although there are no statutory provisions corresponding to section 100 and 101 of the representation of the people act, 1951 setting out the grounds on which the election to a co-operative society can be set aside, it is open to the arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law and to decide the disputes relating to election on the basis of principles of justice, equity and good conscience and that while doing so, the arbitrator should steer clear of principles which are contrary to or not warranted by the karnataka co-operative societies act, 1959. therefore, it cannot be said that the arbitrator has only the power to set aside an election and that under no circumstances, he can declare the petitioner or another candidate elected.cyriac joseph, c.j.1. the appellant is the petitioner in writ petition no. 2029/2006 which was dismissed by the learned single judge as per the impugned order dated 13.2.2006. the respondents are the respondents in the said writ petition. the appellant, the 5th respondent and the 6th respondent were candidates in the election of the member of the committee of bagalkot district central co-operative union limited (4th respondent herein) from the constituency of milk producers' co-operative society and oil seed growers' cooperative society. in the said election, the 6th respondent m.s. nalthwad was declared elected as he got 5 votes, the appellant got 2 votes and the 5th respondent did not get any vote. the election of the 6th respondent was challenged by the appellant in an election petition filed under section 70 of the karnataka co-operative societies act. the election petition was numbered as 04/2003-04 and was decided by the deputy registrar of co-operative societies, bagalkot. the main contention raised in the election petition was that the 6th respondent was disqualified to be elected as a member of the 4th respondent co-operative union and even though the petitioner had objected to the nomination paper filed by the 6th respondent, the returning officer over-ruled the objection and allowed the 6th respondent to contest the election. apart from praying to set aside the election of the 6th respondent, the petitioner (appellant herein) had also prayed to declare him as elected. while deciding the election dispute, the deputy registrar held that the 6th respondent was disqualified to be elected and set aside the election of the 6th respondent and also declared that the petitioner was elected as member of the committee of the 4th respondent co-operative union from the constituency of milk producers' co-operative society and oil seed growers' co-operative society. though the 6th respondent did not question the decision of the deputy registrar, the 5th respondent basappa filed an appeal against the decision of the deputy registrar before the karnataka appellate tribunal. the appeal was registered as appeal no. 669/2004 and it was disposed of on 6.1.2006. though the appellate tribunal upheld the decision that the 6th respondent was disqualified to be elected as a member of the committee of the 4th respondent co-operative union, the tribunal set aside the order of the deputy registrar declaring the appellant elected as member of the committee of the co-operative union from the constituency of the milk producers' co-operative society and oil seed growers co-operative society. aggrieved by the order of the appellate tribunal, the appellant filed the writ petition praying to quash the order dated 6.1.2006 of the karnataka appellate tribunal. however, the writ petition was dismissed at the admission stage by the learned single judge. challenging the order of the learned single judge, the writ petitioner has filed this appeal.2. in the impugned order, the learned single judge held that the relief of declaring the petitioner elected can be granted only under limited circumstances and that in the present case, having regard to the facts and circumstances of the case, the order of the tribunal directing to hold fresh election was justified. the learned single judge observed that merely because the election of the 6th respondent was set aside, the deputy registrar could not have declared the petitioner elected.3. the first contention raised by the learned counsel for the appellant is that even though there is no specific provision in the karnataka co-operative societies act conferring power on the arbitrator to declare any of the candidates elected, the principles of the election law under the representation of the people act are applicable to an election dispute under section 70 of the karnataka co-operative societies act also. learned counsel relied on the decision of a single bench of this court in channe gowda and anr. v. state of karnataka and ors. 1975(2) kar.l.j. 235 and the decision of a division bench of this court in b. gurumallappa v. state of karnataka : ilr1991kar577 . we are inclined to accept the above contention and agree with the view taken by this court in the above mentioned decisions that although there are no statutory provisions corresponding to section 100 and 101 of the representation of the people act, 1951 setting out the grounds on which the election to a co-operative society can be set aside, it is open to the arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law and to decide the disputes relating to election on the basis of principles of justice, equity and good conscience and that while doing so, the arbitrator should steer clear of principles which are contrary to or not warranted by the karnataka co-operative societies act, 1959. therefore, it cannot be said that the arbitrator has only the power to set aside an election and that under no circumstances, he can declare the petitioner or another candidate elected. in our view, in appropriate cases, the arbitrator is competent to declare the petitioner or another candidate elected. in taking a decision as to whether the petitioner or another candidate should be declared elected, the arbitrator should be guided by the general principles under section 101 of the representation of the people act. in view of the above legal position and in view of the fact that the appellant-petitioner in this case had prayed for declaring him elected, we hold that the arbitrator was competent to declare the appellant-petitioner or any other candidate elected.4. the second contention raised by the learned counsel for the appellant is that the tribunal erred in taking the view that there was no justification for declaring the petitioner elected. it is contended that there were only three candidates including the appellant, the 5th respondent and the 6th respondent, that the 6th respondent got 5 votes and the appellant got 2 votes where as the 5th respondent did not get any vote, that the election of the 6th respondent was set aside on the ground that he was disqualified to be elected and that therefore the arbitrator was right and justified in declaring the appellant elected. according to the learned counsel, since the 6th respondent was declared to be disqualified, the votes polled in his favour should be discarded and then the appellant would get 2 votes and the 5th respondent would not get any vote and hence the appellant was entitled to be declared elected. we do not find any merit in this contention. section 101 of the representation of the people act, 1951 is extracted hereunder:101. grounds for which a candidate other than the returned candidate may be declared to have been elected.- if any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the high court is of opinion-(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes.the high court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.5. under the representation of the people act, the petitioner or any other candidate can be declared to have been duty elected only in two contingencies. firstly, the high court should be of opinion that in fact the petitioner or such other candidate received a majority of the valid votes. secondly, the high court should be of opinion that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes. in the present case, there is no case for the appellant that he had received a majority of the valid votes. the valid votes were 7 and the appellant had got only 2 votes. the present case is not a case where the returned candidate obtained votes by corrupt practices and therefore, the question of discarding those votes for deciding the returned candidate does not arise.6. in vishwanatha reddy v. konappa rudrappa nadgouda and anr. : [1969]2scr90 , the hon'ble supreme court held as follows:when there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and no fresh poll is necessary. this is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. in such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. (paragraph 12). in this case, there were more than two candidates in the field for a single seat and only one was disqualified. the voters were not aware of the disqualification of the 6th respondent. if the voters were aware of the disqualification of the 6th respondent, it cannot be assumed that they would have voted for the appellant or that they would not have voted for the 5th respondent. if they had voted for the 5th respondent, then he would have got more votes than the appellant. in such circumstances, merely because the election of the 6th respondent was set aside, it need not necessarily follow that the appellant is entitled to be declared to have been elected. the karnataka appellate tribunal was therefore justified in setting aside the order of the arbitrator declaring the appellant as elected and directing fresh election.7. for the reasons stated above, we do not find any merit in the appeal and the appeal is dismissed.

Judgment:
Cyriac Joseph, C.J.

1. The appellant is the petitioner in Writ Petition No. 2029/2006 which was dismissed by the learned single Judge as per the impugned order dated 13.2.2006. The respondents are the respondents in the said Writ Petition. The appellant, the 5th respondent and the 6th respondent were candidates in the election of the Member of the Committee of Bagalkot District Central Co-operative Union Limited (4th respondent herein) from the constituency of Milk Producers' Co-operative Society and Oil Seed Growers' Cooperative Society. In the said election, the 6th respondent M.S. Nalthwad was declared elected as he got 5 votes, the appellant got 2 votes and the 5th respondent did not get any vote. The election of the 6th respondent was challenged by the appellant in an Election Petition filed under Section 70 of the Karnataka Co-operative Societies Act. The Election Petition was numbered as 04/2003-04 and was decided by the Deputy Registrar of Co-operative Societies, Bagalkot. The main contention raised in the Election petition was that the 6th respondent was disqualified to be elected as a member of the 4th respondent Co-operative Union and even though the petitioner had objected to the nomination paper filed by the 6th respondent, the Returning Officer over-ruled the objection and allowed the 6th respondent to contest the election. Apart from praying to set aside the election of the 6th respondent, the petitioner (appellant herein) had also prayed to declare him as elected. While deciding the Election dispute, the Deputy Registrar held that the 6th respondent was disqualified to be elected and set aside the election of the 6th respondent and also declared that the petitioner was elected as member of the Committee of the 4th respondent Co-operative Union from the constituency of Milk Producers' Co-operative Society and Oil Seed Growers' Co-operative Society. Though the 6th respondent did not question the decision of the Deputy Registrar, the 5th respondent Basappa filed an appeal against the decision of the Deputy Registrar before the Karnataka Appellate Tribunal. The appeal was registered as Appeal No. 669/2004 and it was disposed of on 6.1.2006. Though the Appellate Tribunal upheld the decision that the 6th respondent was disqualified to be elected as a member of the Committee of the 4th respondent Co-operative Union, the Tribunal set aside the order of the Deputy Registrar declaring the appellant elected as member of the Committee of the Co-operative Union from the constituency of the Milk Producers' Co-operative Society and Oil Seed Growers Co-operative Society. Aggrieved by the order of the Appellate Tribunal, the appellant filed the Writ Petition praying to quash the order dated 6.1.2006 of the Karnataka Appellate Tribunal. However, the Writ Petition was dismissed at the admission stage by the learned single Judge. Challenging the order of the learned single Judge, the Writ petitioner has filed this appeal.

2. In the impugned order, the learned single Judge held that the relief of declaring the petitioner elected can be granted only under limited circumstances and that in the present case, having regard to the facts and circumstances of the case, the order of the Tribunal directing to hold fresh election was justified. The learned single Judge observed that merely because the election of the 6th respondent was set aside, the Deputy Registrar could not have declared the petitioner elected.

3. The first contention raised by the learned Counsel for the appellant is that even though there is no specific provision in the Karnataka Co-operative Societies Act conferring power on the Arbitrator to declare any of the candidates elected, the principles of the Election law under the Representation of the People Act are applicable to an Election dispute under Section 70 of the Karnataka Co-operative Societies Act also. Learned Counsel relied on the decision of a single Bench of this Court in Channe Gowda and Anr. v. State of Karnataka and Ors. 1975(2) Kar.L.J. 235 and the decision of a Division Bench of this Court in B. Gurumallappa v. State of Karnataka : ILR1991KAR577 . We are inclined to accept the above contention and agree with the view taken by this Court in the above mentioned decisions that although there are no statutory provisions corresponding to Section 100 and 101 of the Representation of the People Act, 1951 setting out the grounds on which the election to a Co-operative Society can be set aside, it is open to the Arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law and to decide the disputes relating to election on the basis of principles of justice, equity and good conscience and that while doing so, the Arbitrator should steer clear of principles which are contrary to or not warranted by the Karnataka Co-operative Societies Act, 1959. Therefore, it cannot be said that the Arbitrator has only the power to set aside an election and that under no circumstances, he can declare the petitioner or another candidate elected. In our view, in appropriate cases, the Arbitrator is competent to declare the petitioner or another candidate elected. In taking a decision as to whether the petitioner or another candidate should be declared elected, the Arbitrator should be guided by the general principles under Section 101 of the Representation of the People Act. In view of the above legal position and in view of the fact that the appellant-petitioner in this case had prayed for declaring him elected, we hold that the Arbitrator was competent to declare the appellant-petitioner or any other candidate elected.

4. The second contention raised by the learned Counsel for the appellant is that the Tribunal erred in taking the view that there was no justification for declaring the petitioner elected. It is contended that there were only three candidates including the appellant, the 5th respondent and the 6th respondent, that the 6th respondent got 5 votes and the appellant got 2 votes where as the 5th respondent did not get any vote, that the election of the 6th respondent was set aside on the ground that he was disqualified to be elected and that therefore the Arbitrator was right and justified in declaring the appellant elected. According to the learned Counsel, since the 6th respondent was declared to be disqualified, the votes polled in his favour should be discarded and then the appellant would get 2 votes and the 5th respondent would not get any vote and hence the appellant was entitled to be declared elected. We do not find any merit in this contention. Section 101 of the Representation of the People Act, 1951 is extracted hereunder:

101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes.

the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

5. Under the Representation of the People Act, the petitioner or any other candidate can be declared to have been duty elected only in two contingencies. Firstly, the High Court should be of opinion that in fact the petitioner or such other candidate received a majority of the valid votes. Secondly, the High Court should be of opinion that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes. In the present case, there is no case for the appellant that he had received a majority of the valid votes. The valid votes were 7 and the appellant had got only 2 votes. The present case is not a case where the returned candidate obtained votes by corrupt practices and therefore, the question of discarding those votes for deciding the returned candidate does not arise.

6. In Vishwanatha Reddy v. Konappa Rudrappa Nadgouda and Anr. : [1969]2SCR90 , the Hon'ble Supreme Court held as follows:

When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification and no fresh poll is necessary. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. (paragraph 12).

In this case, there were more than two candidates in the field for a single seat and only one was disqualified. The voters were not aware of the disqualification of the 6th respondent. If the voters were aware of the disqualification of the 6th respondent, it cannot be assumed that they would have voted for the appellant or that they would not have voted for the 5th respondent. If they had voted for the 5th respondent, then he would have got more votes than the appellant. In such circumstances, merely because the election of the 6th respondent was set aside, it need not necessarily follow that the appellant is entitled to be declared to have been elected. The Karnataka Appellate Tribunal was therefore justified in setting aside the order of the Arbitrator declaring the appellant as elected and directing fresh election.

7. For the reasons stated above, we do not find any merit in the Appeal and the Appeal is dismissed.