Procedural non-compliance in election eligibility does not cure disqualification; eligibility disputes must be resolved under the relevant provisions of the Act.

ORDER :

Mr. Anant Ramanath Hegde, J. - Heard the learned counsel appearing for the petitioners, learned Government Advocate appearing for the respondent-State, learned advocate appearing for the Co-operative Election Authority and learned advocate appearing for the respondent-society.

2. This writ petition is essentially filed seeking a Writ of Mandamus to include the names of the petitioners in the final eligible voters' list and permit the petitioners to vote and contest in the election to the board of respondent - society which was scheduled on 21.01.2024.

3. This Court by way of interim order permitted the petitioners to cast vote and permitted to file nomination paper to contest in the said election. However, the result of the election was withheld.

4. The learned counsel for the petitioners would contend that the mandatory requirements of Rule 13-D(2-A) of the Karnataka Co-operative Societies Rules, 1960 have not been followed while preparing the eligible and ineligible voters' list. Thus, it is urged that the petitioners should be treated as eligible voters' and their votes need to be counted as valid votes.

5. Learned counsel for the respondent - Society disputes the claim of the petitioners and contends that requirements of Rule 13-D(2-A) of the Karnataka Co-operative Societies Rules, 1960 (Hereinafter referred to as the 'Rules, 1960' for short) are followed and majority of the petitioners are not the members of the society.

6. At this juncture, it is brought to the notice of this Court that in similar circumstances, this Court in the case of H S Raju And Others v. State Of Karnataka And Others (2022(4) AKR 775) has permitted the votes to be counted and the election results to be announced keeping open all other contentions to be adjudicated in appropriate forum under Section 70(2) of the Karnataka Co-operative Societies Act, 1959 (Hereinafter referred to as the 'Act, 1959' for short).

7. It is relevant to note that merely because the petitioners were permitted to contest and vote in the election to the board of the respondent-society, it does not mean that all the petitioners had the eligibility to contest and vote in the election. It is quite possible that all or some had the eligibility to contest and vote or may had incurred disqualification to contest and vote. Merely because procedures contemplated under Rule 13-D(2-A) of Rules, 1960 are not followed, it does not mean that the disqualification if any incurred, is cured. Whether the petitioners did incur the disqualification to contest and vote or not, is a question of fact. Same is to be decided in a proceeding under Section 70(2)(c) of the Act, 1959.

8. Admittedly, the writ petition is filed post publication of calendar of events. Under these circumstances, this Court has to follow the ratio laid down in the case of Mohammad Beary & Others v. The State Of Karnataka & Others (Writ Petition No.29271/2023 & Connected matters). In the said proceeding, this Court has taken a view that the writ petition challenging the electoral roll post publication of calendar of events is not permissible.

9. The law laid down in H S Raju's case supra cannot be made applicable in this petition as the respondent-society is disputing the claim made by the petitioners which was not the case in H S Raju supra.

10. Hence, the following:

ORDER

(i) The writ petition is dismissed.

(ii) Returning Officer shall announce the results of the election to the Board of 4th respondent - Society held on 21.01.2024 by excluding the votes cast by the petitioners.

(iii) The petitioners who have contested the election pursuant to the interim order cannot be treated as the candidates in the fray.

(iv) If any person entitled to raise a dispute under Section 70(2)(c) of the Karnataka Co-operative Societies Act, 1959, raises a dispute under the said provision questioning the election results, the said dispute shall be decided without being influenced by the dismissal of the writ petition. It is made clear that this Court