GOVINDAPPA Vs. SOMASEKHAR ISHWARAPPA

JUDGEMENT

(1.) This appeal is filled against the order of the learned single Judg WP. 3815 of 1977 dismissing -the said petition. The appellant was the petitioner in that petition. Briefly stated the facts of the case are the At an election to the managing cilmmittqe of a Co-operative Society, the appellant, respondent-2 and some others were candidates. At the time of the scrutiny of the nomination paper respondent raised objection to the nomination of the appellant an the ground that he (the appellant) was suffering from a disqualification referred to in Sec. 29C of the Karnataka Co-operative Societies Act, 1959 (hereinafter reffered to a the Act). The said objection was over-rulea and election was held. The appellant was declared, as a successful Candida at the election. There after respondents 1 and 2 raised an election dispute challenging his election under Sec.70 of the Act on thq ground that he was disqualified to be chosen as a member under Sec. 29C of the Act and filejd the election petition before the Joint Registrar of Co-operative Societis-Respondent-8, on whom the State Govt had conferred the powers exqrcisable by the Registrar under Sec.70 of the Act in relation to the class of co-operative societies to which the Go-operative Society belonged, by an order made under Se.2A of the Act. He in his turn referred the dispute to the Deputy Registrar of Co-op Societies, Respt-7, who had been empowered to hear and decide such disputes as an arbitrator by an order passed b the Registrar under Sec.71(l)(c) of the Act. Before Respt-7, the appellant raided an objection to his jurisdiction to hear and decide the dispute on the ground that sub-sec(7) of Sec.29C required that any question as to whether a member of a committe was or had become subject to any of the disqualifications mentioned in Sec.29C of the Act, should be decided the Registrar after giving the person concerned a reasonable opportunity of being heard and that Respt-7 why was neither the Registrar nor an officer to whom the power of the Registrar under Sec.29C(7) had been delegated by the State Govt under Sec.2A of the Act, could not hear and decide whether the appellant was suffering from any of the disqualifications mentioned in Sec.29C of the Act prior to the election. Respt-7 overruled the said objection, by his order d/ 29-1-77. A revision petition filed against that order by the appellant and another before the Karnataka Appellate Tribunal, Bangalore, was dismasted on 23-4-77. Against the order of the Tribunal, the appellant filed WP.3815 of 1977, out of which this appeal arises, quqationing the jurisdiction of Respt-7 to hear and decide the ejection disputq on the very same ground. The learned single Judge dismissed it. Hence this appeal. Sub-sec(1) of Sec.29C of the Act provides that no person shall be eligible! for being elected or appointed or continued, as a member of the committee if he is suffering from any of the disqualifications mentioned therein. Sub-sec (7) of Seqtion 29C reads : Any question as to whether a member of the Committee was or has become subject to any of the disqualifications mentioned in this section shall be decided by the Registrar after giving the person concerned a reasonable opportunity of being heard. Sub-seed) of Sec.70 of the Act provides that notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management or the business of a co-op society arises amongst the members such a dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to, enterta in any suit or either proceeding in resepect of such dispute. Sub-sec(2) of Sec.70 provides that for the purposes of sub-sec (1) any dispute arising in connection with the election of a member of a co-op society, shall be deemed to be a, dispute touching the constitution management or the business of a co-opSociety.

(2.) A dispute raised under Sec.70 has to be disposed of by the Registrar or by any other person, authorised, to do So under Sec.71 in accordance with the relevant provisions of the Act. It is well-settled that if the law requires that a dispute, should be, decided in a particular manner, ordinarily it cannot be decided in any other way. In the instant case an election dispute, which is required to be decided under Sec.70 of the Act cannot at all be decided in any other manner because of the non-obstante clause appearing in sub-sec(1) of Sec.70 of the Act. The only question to be, decided in the present election dispute is whether the acceptance of the nomination paper of the appellant was valid or not and the answer to that question depends upon the detcision on the question whether he was suffering from any disqualification referred to in Sec.29C of the Act, prior to the election or not. It is, therefore, clear that the latter question has to be decided by the person who is authorsied to hear and decide the election petition under Section 71 of the Act.

(3.) It is however argued by Shri K.S.Savanur, learned Counsel for the appellant that sub-sec(7) of 3ec.29C of the Act which is a special provision has to prevail over Sec 71 and that both of them can be given effect to by directing the Registrar who is empowered to decide both the dispute under Sec.70 of the Act and any question arising under Sec.29C of the Act to hear and decide the election petition. It may be that the Registrar himself may decide the election dispute as suggested by the learned Counsel for the appellant. But the real question to be decided in the case is whether Respt-7 can not decide all questions arising in the election dispute, including the existence or otherwise of any disqualification referred to in Sec.29C of the Act notwithstanding sub-sec(7) of S.29C of the Act. Sub-section (1) of Sec. 29C of the Act lays down that no person shall be eligible for being ellectae or appointed or continued as a member of the committee, if he is suffering from any of the disqualifications mentioned therein. It follows that if a person is suffering from any disqualification before the election, he cannot be a candidate and his nomination paper has to be rejected. But if notwithstanding such a disqualification being there the election is held and he is elected, his election can be challenged in an election petition under Sec.70 of the, Act filed within the period of limitation prescribed under Sec.72A of the Act If a member becomes subject to any disqualification mentioned in Sec.29C (1) of the Act after the election is held, then the question whether he has become subject to any such disqualification or not has to be decided under subsection (7) of Sec.29C of the Act by the Registrar or any other authority on whom power is cdnferred. If this distinction between a pre-election disqualification and past-election disqualification is kept in view it is possible to give effect both to S.70(l) and S.29C(7) of the Act without doing violence to the language and intendment of the statute.