The preparation of electoral roll under Rule 13-D(2-A) is an integral part of the election process, and the writ petition to challenge the electoral roll on the ground of non-compliance with Rule 13-D(2-A) may lie in exceptional cases. However, in this case, no exceptional circumstances were found to exercise Article 226 jurisdiction.

ORDER :

1. The petitioners claim to be the members of the 6th respondent-bank (Hereinafter referred to as the ‘Bank’ for short). The petitioners have prayed to direct the Bank to redo the draft voters' list. Further prayer is to direct the 4th respondent-election officer to hold elections to the Board of the Bank after finalising the voters’ list by complying with the requirements under Rule 13-D(2-A) of the Karnataka Co-operative Societies Rules, 1960. (For short ‘Rules 1960’).

2. The other prayer to direct the 4th respondent to consider petitioners’ representation to appoint an administrator to the Bank does not survive as the administrator is already appointed to the Bank.

3. This Court vide interim order dated 04.01.2024, permitted the Returning Officer (subject to the result of the petition) to publish the calendar of events for the election to the Board of the Bank. The calendar of events was published on 04.01.2024. While reserving the matter for judgment on 17.01.2024, this Court has permitted voting to be held on 21.01.2024. However, counting of votes and the result are withheld.

4. The petition is filed on the premise that the process initiated by the Bank to prepare the eligible and ineligible voters’ list for the election to the board of the Bank, is in total derogation of Rule 13-D(2-A) of the Rules, 1960. The validity of the voters’ list cannot be adjudicated in a dispute under Section 70(2)(c) of the Karnataka Co-operative Societies Act, 1959 (For short ‘Act 1959’) as the said dispute falls outside the scope of Section 70 of the Act, 1959.

5. The respondents contend that petitioners have a remedy under Section 70(2)(c) of the Act, 1959 to challenge the voters’ list and writ petition is not maintainable.

6. The co-ordinate Bench of this Court in Mohammad Beary and Others vs. State of Karnataka and Others, Writ Petition No. 29271/2023, relying on the judgment of the Apex Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another vs. State of Maharashtra and Others, (2001) 8 SCC 509 has taken a view that the writ petition challenging ineligible voters’ list after the publication of calendar of events is not maintainable and the aggrieved party has to approach the authority under Section 70 of the Act, 1959.

7. Another co-ordinate bench of this Court in H.S. Raju and Others vs. State of Karnataka and Others, 2022 (4) AKR 775 in a slightly different context where ex-parte interim order was granted permitting the petitioners to vote in the election, after service of notice and on an admission made by the Society that the Rule 13-D(2-A) of Rules, 1960 is not complied, permitted counting of votes cast by the petitioners and kept open all disputes to be decided under Section 70 of Act, 1959, if any raised.

8. The petitioners urge that this petition is filed even before the publication of the calendar of events whereas the judgments referred to supra are rendered where the petitions are filed after publication of calendar of events. It is also urged that the Apex Court in Election Commission of India through Secretary vs. Ashok Kumar and Others, (2000) 8 SCC 216 has held that the writ petition is maintainable if the same is filed to ensure fair and smooth elections. On this premise, it is urged that the judgment in Mohammad Beary and H.S. Raju supra are per incurium.

9. In the light of the contentions raised, the following questions arise for consideration:

(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable (before the publication of the calendar of events under Rule 14) to redo the voters’ list for violation of Rule 13-D(2-A) of the Rules, 1960, in preparing the eligible and ineligible voters’ list?

(b) Whether the authority acting under Section 70(2)(c) of the Act, 1959 can decide the validity of the electoral roll vis-a-vis Rule 13-D(2-A) of Rules, 1960?

(c) Whether the judgments of co-ordinate Bench of this Court in Mohammad Beary and H.S. Raju