SHIVAPUTRAPPA Vs. SUBHAS JOSHI

JUDGEMENT

(1.) THIS Appel is directed against an order passed by a learned single Judge of this Court, whereby WP No. 6252/1999 filed by the respondent Sri Suhas Joshi has been allowed, the impugned orders and calender of events quashed and a direction issued to the returning Officer to declare the respondent duly elected to the committee of management of the 3rd respondent-society. Hiranyakeshi Sahakari Sakkare Karkhane Niyamit is a co-operative society registered under the provisions of Multi-state societies Act, 1984. The appellant and Respondent No. 1 are members of the said society, which is managed by a committee comprising eleven persons, ten out of whom are from out of category-A members while the eleventh is elected by category-B members of the society. Elections to the committee were scheduled to be held in december 1998, in which connection the Assistant Commissioner was appointed as the Returning Officer, who in turn published a calender of events inter alia fixing the dates for filing and withdrawal of nomination papers, poll and declaration of result. In response to the said notice, as many as 1557 nominations were filed by candidates against the ten vacancies available for category-A members. In contrast, the solitary vacancy for category-B members evoked response only from two members. Upon scrutiny of the nomination papers received by the Returning Officer, as many as 1492 were found to be in order for the ten vacancies in category-A. In so far as category-B was concerned, upon withdrawal of the nomination by Sri J G Patil, Sri Suhas Joshi was the only candidate left in the fray. The Returning Officer however felt that it was not feasible to complete the election process within the time available to him on account of an unusually large number of candidates, remaining in the fray for category-A vacancies. He accordingly passed an order on 13th of December 1998, postponing indefinitely and until further orders the conduct of the election. Aggrieved by the said order, 55 members of the society approached the Central registrar of Co-Operative Societies seeking his intervention and supersession of the society under Section 48 of the Karnataka State co-operative Societies Act. This application was after consideration rejected by the Central Registrar with the direction that the election process initiated by the Returning Officer shall be completed within a period of two months. An appeal against the said order was filed before the Secretary, Department of Agriculture and Co-operation, government of India under Section 74 of the Act aforementioned. The appeal inter alia contained a prayer for declaring the respondent- Sri Suhas Joshi duly elected as a member of the Managing committee of the Society. The Appellate authority did not however find favour with the grievance in the appeal and accordingly dismissed the same. Instead of proceeding with the election and completing the same within the time frame fixed by the Central registrar, the Returning Officer appears to have once again expressed difficulty in conducting the election on account of the large number of candidates remaining in the fray and requested the registrar, Co-operative Societies of Karnataka to take up the matter with the Central Registrar. It was at this stage that an order dated 20th of April 1999 was passed by the Central Registrar directing the returning Officer to conduct the election afresh from the stage of filing of the nomination passes and to complete the said process before 30th of June 1999. In the meantime, the respondent - Sri suhas Joshi had filed W. P. No. 6252/1999 in this Court for a mandamus directing the Returning Officer to declare the petitioner as elected as a member of the Managing Committee against the solitary vacancy in category-B. Upon the issue of directions dated 20th of April 1999 by the Central Registrar, the Petitioner made an application for permission to urge additional grounds challenging the calender of events issued by the Returning Officer pursuant to the said directions in so far as the same invited fresh nomination papers against the vacancy for category-B members. An application seeking stay of the election was also filed but disallowed by the Single Judge. The Writ Petitioner also appears to have filed his nomination papers in pursuance to the fresh calender of events on 14th of June 1999, which was withdrawn by him shortly thereafter on 18th of June 1999. The appellant had also filed his nominations in response to the said calender of events, on the basis whereof an election was scheduled to be held on 23rd of June 1999 for both category-A and B members. The Writ Petition filed by Respondent No. 1 however was heard and allowed on the very same day with a declaration that the petitioner stood elected on the basis of the calender of events issued earlier. The learned Single Judge was of the view that order dated 20th of april 1999 issued by the Central Registrar was in total negation of the earlier order issued by him and upheld by the Appellate Authority in appeal. The Returning Officer had, in the face of the said orders, no option, but to take the election process already started with the issue of the earlier calender of events to its logical conclusion. The second calender of events inviting fresh nomination papers in so far as B-category share holders were concerned was accordingly quashed and the petitioner declared to have been duly elected to the committee of management. Appearing for the appellant, Mr. Narasimha Murthy made but one submission in support of the appeal. He contended that even when the direction issued by the Central Registrar did not strictly speaking have any sanction of law in the Light of the earlier order made by him and upheld by the Appellate Authority, yet the respondent - Sri suhas Joshi having acquiesced in the process initiated with the issue of fresh calender of events was estopped from either assailing its validity or seeking any relief in the extraordinary Writ Jurisdiction of this Court. We find it difficult to subscribe to that view. We say so for three precise reasons. Firstly because, the doctrine of estoppel or acquiescence as the same is often described, can have no application to situations, where the action complained of is ultravirus or void ab initio. No amount of consent or acquiescence of a party can in such cases infuse life or legitimacy into orders, which are otherwise incompetent or void. The expression "acquiescence" which supplies the very foundation for the plea of estoppel envisages cases and situations, where the person seeking redress from the Court refrains from objecting to the violating of his rights even when such violation was being committed within his knowledge. It follows that cases where rights are infringed without the person concerned knowing that the same are vested in him, a complaint against any such violation cannot be shut out on the ground of estoppel or acquiescence. Halsbury's Laws of England describes the expression