A candidate who dies after polling but before result declaration cannot have the second-highest candidate declared as elected; a bye-election is required.

ORAL ORDER

1. The Petitioner is before this Court seeking for the following reliefs;

"i. Issue a writ of mandamus directing the respondent no.4 to consider the representation vide Annexure-C of the Petitioner for declaration of results by declaring the Petitioner as an elected candidate if the Petitioner comes within the 9 elected directors from general constituency after the exclusion of the deceased candidate Sri.Harsha.Y.S., in the interest of justice and equity.

ii. Such other direction or order writ as may deem fit to this Hon'ble Court may kindly be issued."

2. The Petitioner is a member of respondent No.5 - Society and had contested in elections of the Society on 09.02.2025. There were 15 directors who were required to be elected, 9 directors were to be elected from the General Constituency, 2 from women reserved category, 1 director each from BCA, BCB, SC and ST. There are totally 34 members who contested the election, one of the candidates who contested the election in the General constituency by name Sri.Harsha.Y.S., expired after the polling but before the results were declared. At the time when the declaration of the result was made, the said Sri.Harsha.Y.S., having expired, was found to have secured the highest number of votes followed by the Petitioner in the next position from the General Constituency.

3. The Petitioner, therefore, submitted a representation on 19.02.2025 to declare the Petitioner to be the elected candidate from the General Constituency on account of Sri.Harsha.Y.S., having expired and the Petitioner having secured the second highest votes. The same not having been considered and the respondents having indicated that fresh elections would have to be held, the Petitioner is before this Court seeking for the aforesaid relief.

4. Sri. Devi Prasad Shetty, learned counsel for the Petitioner, would submit that

4.1. the said Sri.Harsha. Y.S., if had expired prior to the polling, his name would have been struck off from the electoral roll, and voting would have been carried out.

4.2. The Petitioner, being the candidate who has secured the second highest votes, Sri Harsha not contestin, Petitioner would have secured the highest votes.

4.3. The votes of Sri.Harsha. Y.S. would probably be split amongst the other candidates, resulting in the Petitioner being the candidate who would have secured the highest number of votes, and as such, preference has to be given to the Petitioner and the Petitioner being declared as the returning/successful candidate without holding a fresh election.

4.4. His submission is also that holding a fresh election would cost a lot of money which would be an unnecessary drain on the financial resources of the Society in that background hew submits that the petition is required to be allowed and the reliefs sought for granted.

5. Sri.Yogesh D Naik, learned AGA, opposes the petition and submits that the petition is required to be dismissed.

5.1. He relies upon Section 29-E of the Karnataka Co-operative Society Act, 1959 [‘KCS Act’ for short], which is reproduced hereinunder for easy reference:

29-E. Filling up of casual vacancy in the office of members of the Board.-Any vacancy in the office of members of the [board] of a co-operative society by reason of death, resignation, removal or otherwise, shall be filled up in such manner as may be specified in the bye-laws of such Society:

[Provided that the election commission shall conduct the election to fill up any vacancy in the office of the director of the board if the remaining term of office of the board is more than half of its original term:

Provided further that the board may fill up casual vacancy of the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the remaining term of office of the board is less than half of its original term:]

[Provided also that, if the Board fails to fill up such casual vacancy within three months of the date of occurrence, the Registrar shall fill up through