- 1 - NC: 2025:KHC:18128 WP No. 6635 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 6635 OF 2025 (CS-EL/M) BETWEEN: JAGADISH SARODE. S S/O SHANKAR RAO AGED 55 YEARS RO NO. 1742 B ZONE HANCHYA AND SATHAGALLI LAYOUT, NEAR RING ROAD, VTU REGIONAL COLLEGE, NAZARBATI MOHAILLA, MYSORE-570029 …PETITIONER (BY SRI. DEVI PRASAD SHETTY.,ADVOCATE) AND: 1. THE STATE OF KARNATAKA DEPARTMENT OF CO-OPERATION M.S BUILDING, DR. BR AMBEDKAR VEEDHI BENGALURU -560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY. 2. THE STATE CO-OPERATIVE ELECTION AUTHORITY 3RD FLOOR, T.T.M.C. 'A' BLOCK, SHANTHI NAGAR, BANGALORE-560 027, REPRESENTED BY ITS SECRETARY. 3. JOINT REGISTRAR OF COOPERATIVE SOCIETIES/DISTRICT ELECTION OFFICER, MYSORE REGION, MYSORE-570034 ® Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18128 WP No. 6635 of 2025 4. RETURNING OFFICER, MYSORE UNIVERSITY EMPLOYEES HOUSING CO- OPERATIVE SOCIETIES, CRAWFORD HALL, MYSORE- 570005 REGISTERED UNDER THE KARNATAKA COOPERATIVE SOCIETIES ACT-1959 5. MYSORE UNIVERSITY EMPLOYEES HOUSING CO- OPERATIVE SOCIETIES, CRAWFORD HALL, MYSORE-570005 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER REGISTERED UNDER THE KARNATAKA COOPERATIVE SOCIETIES ACT-1959 …RESPONDENTS *(BY SRI. YOGESH D. NAIK., AGA FOR R1, R3 & R4; SRI. T.L. KIRAN KUMAR., ADVOCATE FOR R2; SRI. VARUN J. PATIL., ADVOCATE FOR R5) THIS WP IS FILED PRAYING TODIRECTING THE R4 TO CONSIDER THE REPRESENTATION VIDE ANNEXURE-D 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.GRANT AN INTERIM PRAYER TO DIRECT THE R4 TO CONSIDER THE REPRESENTATION OF THE PETITIONER FOR DECLARATION OF RESULTS BY DECLARING THE PETITIONER AS AN ELECTED CANDIDATE FROM GENERAL CONSTITUENCY IF THE PETITIONER COMES WITHIN THE 9 ELECTED DIRECTORS AFTER THE EXCLUSION OF THE DECEASED CANDIDATE SRI. HARSHA YS POST THIS WP FOR PRELIMINARY HEARING BEFORE SINGLE JUDGESN- 05/03/2025P *Corrected vide Court order dated 13.06.2025 - 3 - NC: 2025:KHC:18128 WP No. 6635 of 2025 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ 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, - 4 - NC: 2025:KHC:18128 WP No. 6635 of 2025 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. - 5 - NC: 2025:KHC:18128 WP No. 6635 of 2025 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 - 6 - NC: 2025:KHC:18128 WP No. 6635 of 2025 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 - 7 - NC: 2025:KHC:18128 WP No. 6635 of 2025 occurrence, the Registrar shall fill up through nomination.] 5.2. By relying on Section 29-E, he submits that any vacancy in the office of the member of the Board of a Co-operative Society by reason of death, resignation, removal or otherwise has to be filled up in such manner as may be specified in the Bye-laws. In the present case, the Bye- laws specifying that elections have to be held, the vacancy in office having arisen on account of the expiry of Sri.Harsha.Y.S., would have to be filled up only be way of an election. 5.3. His submission is that on the declaration of results Sri.Harsha.Y.S., has been declared as a director of the Society, however, on account of Sri.Harsha.Y.S., having expired not being in a position to take oath as a director of the Society, his appointment is not complete. 5.4. There cannot be a situation in which the candidate who has secured the second-highest - 8 - NC: 2025:KHC:18128 WP No. 6635 of 2025 votes can be declared as an elected representative. It is the procedure under Section 29-E that must be followed. 5.5. He also relies on Section 67-A of the Representation of People Act, 1951, (hereinafter for brevity referred to as R.P. Act, 1951) which is reproduced hereunder for easy reference: 67A. Date of election of candidate.—For the purposes of this Act, the date on which candidate is declared by the returning officer under the provisions of section 53, or section 66, to be elected to a House of Parliament or of the Legislature of a State shall be the date of election of that candidate. 5.6. By relying on Section 67-A, he submits that the date on which the candidate is declared by the returning officer under the provision of Section 53 or 66 to be elected shall be the date of election of that candidate. In the present matter the declaration of Sri.Harsha.Y.S., having secured the highest votes and being declared to be the elected candidate is the date - 9 - NC: 2025:KHC:18128 WP No. 6635 of 2025 of election of Sri.Harsha.Y.S., his death being immaterial insofar as such declaration is concerned. 5.7. Similar would be the effect of Rule14-Y of the Karnataka Co-operatives Societies Rules, 1960 (hereinafter for brevity referred to as KCS Rules, 1960). The said Rule-14Y is reproduced hereunder for easy reference: 14Y. Declaration of result of election and returns to CEA. (1) After the counting is over- (i) the candidate who has secured the largest number of valid votes shall be declared as elected. (ii) If equality is found to exist between the candidates to be declared elected, the Returning Officer shall forthwith decide between these candidates, by drawing lots and the candidate in whose favour the lot falls shall be considered to have received an additional vote. (2) After the completion of the counting of votes, the Returning Officer shall declare the result of the elections immediately and publish the list of elected candidates on the notice board of his office and also on the notice board of the Society and deliver a copy of it to the Chief Executive of the Society on the same day in Form XXII. He shall immediately thereafter record the proceedings of the election in a comprehensive report which shall form part of the election records and shall be binding on all. - 10 - NC: 2025:KHC:18128 WP No. 6635 of 2025 The returning officer shall immediately also furnish a copy of such a report together with a copy of the return of the results of polling to the chief executive of the Society and send signed copies thereof to the Election Officer and the CEA. 5.8. He also relies upon a decision of the Hon’ble Division Bench of the Hon'ble Gujarat High Court in Sonalba Navalsinh Vaghela -v- State of Gujarat1 more particularly para Nos. 58, 63, 64 and 65 thereof, which are reproduced hereunder for easy reference: 58. In our opinion, if a candidate, after the poll and before the declaration of the result, dies, then naturally he/she will not be able to fill the seat by reason of his/her death and the only C/SCA/5927/2021 CAV JUDGMENT DATED: 08/07/2021 remedy left would be to have a bye- election within the stipulated period of time. We find it extremely difficult to take the view that as Lilaben Thakore was an independent candidate the election could not have been countermanded and her votes should not have been taken into consideration for the purpose of declaration of the result and the writ- applicant, having secured the second highest votes, should have been declared as the winner. The argument of Section 28 of the Act is also of no avail to the writ- applicant. We fail to understand how Section 28 of the Act helps the writ-applicant in getting herself declared as a winner. 63. We have quoted the entire legal opinion of the learned Attorney General keeping in mind, or rather, 1 Spl.Civil.Application No.5927/2021 - 11 - NC: 2025:KHC:18128 WP No. 6635 of 2025 considering that in the said opinion the learned Attorney General has discussed important case-law in the form of judgments of the North Dakota Supreme Court, Oklahoma Supreme Court, Pennsylvania Supreme Court, etc. The opinion talks about the 'English' rule as compared to the 'American' rule in the determination of the question, whether the votes cast for a deceased or a disqualified candidate are to be counted or not ? The 'English' rule is that a candidate who has died is ineligible to serve and, therefore, a vote for a deceased candidate is a wasted vote and a nullity. On the other hand, the 'American' rule holds that : (i) the purpose of an election is to carry out a will of the people; (ii) votes for a deceased candidate represent a choice by the qualified voters among the options presented on the ballot; (iii) to disregard such votes, especially when they constitute a majority or plurality of the voters, is to frustrate the popular will; so, therefore, (iv) votes for the deceased should be counted like any other votes, and if the 'candidate' in question would have won the election, the result is a vacancy in the office. The 'American' rule that the principles of popular government rule that the votes cast for a dead man as a candidate for the public office shall not be considered mere nullity but that they shall be regarded as the expression by the voters that they preferred the office to be declared temporarily vacant until it can be filled in the manner prescribed by law rather than that a person whom they voted against, is more appealing and is in consonance with the entire scheme of the Act as well as the Rules. The 'American' rule referred to by us takes care of the situation wherein on the date of the polling itself the candidate is dead but the name of such candidate figures in the ballot paper and still people voted for such candidate. Here is a case wherein Lilaben Thakore was alive on the date of the polling, and in such circumstances, the only alternative now is to go for a bye-election. 64. We find it extremely difficult to take the view that the writ- applicant should be declared as the winner of the election having secured the second highest votes. In fact, none of the rules discussed above say anything in this regard. The only option now left for - 12 - NC: 2025:KHC:18128 WP No. 6635 of 2025 the State Election Commission is to give a bye- election in accordance with law. 65. We are dealing with an important facet of democratic activity. The rules have to be interpreted in a pragmatic and practical manner, consistent with the larger objective and actual difficulties faced in the conduct of election. 5.9. By relying upon Sonalba Navalsinh Vaghela’s case, his submission is that the Division Bench of the Hon'ble Gujarat High Court has considered a similar situation and has come to a conclusion that if a candidate after the poll and before the declaration of the result dies, then the only remedy left would be to have by- election within the stipulated period of time. He submits that the Division Bench of Hon'ble Gujarat High Court has rejected the contention that the candidate securing the second highest votes would have to be declared as a winner. He submits that the said reasoning of the Hon'ble Gujarat High Court in the said decision would be equally applicable to the present case and as such, the representation of the - 13 - NC: 2025:KHC:18128 WP No. 6635 of 2025 Petitioner cannot be considered and the respondents would go ahead with holding the by-election. 6. Sri.Mohammed Tahir, learned counsel for respondent No.5 also adopts the submission of Sri.Yogesh D Naik, learned AGA and submits that an election would have to be held in terms of Section 29-E of the KCS Act. 7. Heard Sri.Devi Prasad Shetty, learned counsel for Petitioner, Sri.Yogesh D Naik, learned AGA for respondents No.1, 3 and 4 and Sri.A.Mohammed Tahir, learned counsel for respondent No.5. Perused papers. 8. The short but important question that would arise for consideration is, “If a candidate were to expire after the poll but before the declaration of result can the candidate securing the next highest number of votes be declared as the successful candidate or would bye-election have to be held?” 9. In an election which is held there can be only one successful candidate or a returning candidate. The - 14 - NC: 2025:KHC:18128 WP No. 6635 of 2025 person coming second in an election does not get elected. It is only the person who secured the highest number of votes who can be declared to be successful. It is of course subject to any challenge to the election made in terms of the applicable law and in the event of the successful candidate’s election being declared to be invalid, a Court seized of the election petition can declare the next candidate securing next highest votes to be the successful candidate if such a releif is sought for and or is permissible to be sought for. 10. Apart from the procedure prescribed in consideration of election petition and for a competent Court to declare in terms of the above, there is no other authority who can do so, including the Election Authority, against whom the reliefs have been sought in the present matter. 11. A candidate if were to expire before the polls to be conducted, as rightly submitted by the Sri.Devi Prasad Shetty, learned counsel, his or her name - 15 - NC: 2025:KHC:18128 WP No. 6635 of 2025 would have been struck off from the ballot paper and as such, no votes would have been cast in favour of such person. In the present case, unfortunately the candidate namely Sri.Harsha.Y.S., expired after the polling but before the declaration of results which now is sought to be taken advantage of by the Petitioner to be declared as a successful candidate on account of the Petitioner having secured the next highest number of votes by eschewing the declaration of Sri.Harsha Y.S., as a successful candidate. 12. As indicated supra, in this case the votes have been counted after the expiry of Sri.Harsha.Y.S., and he has been declared to be successful candidate. Though Section 67-A of the R.P. Act, 1951 would apply to an election to a Member of Parliament or Member of the Legislative Assembly, the purport of that could also be borrowed to consider the election to a Co-operative Society. Appling Section 67-A, it is clear that with the announcement of the result, the - 16 - NC: 2025:KHC:18128 WP No. 6635 of 2025 person is deemed to be elected to the House of Parliament or the Legislature. 13. Similar is the effect of Rule 14-Y of the KCS Rules 1960 in terms whereof after the counting of votes, the candidate who has secured the largest number of votes shall be declared as elected. After the completion of the counting of votes, the Returning Officer is mandated to declare the result of the elections immediately and publish the list of elected candidates on the notice board of his office and also on the notice board of the Society and deliver a copy of it to the Chief Executive of the Society on the same day in Form XXII. The returning officer shall immediately thereafter record the proceedings of the election in a comprehensive report which shall form part of the election records and shall be binding on all. 14. In this case with the announcement of the result, Sri.Harsha Y.S., was declared to have been elected to the Co-operative Society on such declaration, a - 17 - NC: 2025:KHC:18128 WP No. 6635 of 2025 report was drawn up by the returning officer which is binding on ane and all. 15. It is only the formalities which were required to be followed which could not be followed on account of his expiry. The non- following of the formalities does not take away the declaration of results declaring Sri.Harsha.Y.S., as the successful candidate. Once such a declaration is made, then it is deemed that Sri.Harsha.Y.S., had occupied the position of the director of the Society and his expiry has resulted in a vacancy in the said office, thus bringing into play Section 29-E of the KCS Act. In terms whereof in case of any vacancy in the office of the member of the Board of the Co-operative by reason of death, resignation, removal or otherwise, the same would have to be filled up in terms of the procedure prescribed under Bye-laws, which is by way of an election to be conducted. 16. In that view of the matter, on the expiry Sri.Harsha Y.S., a vacancy has occurred in the Board requiring - 18 - NC: 2025:KHC:18128 WP No. 6635 of 2025 election to be held to that particular vacancy. As such, the Petitioner’s representation for being declared as a successful candidate on account of the Petitioner having secured the second highest number of votes cannot be accepted or acceded to, the same being contrary to the mandate of Section 29-E of the KCS Act. 17. The Division Bench of the Hon’ble Gujarat High Court in Sonalba Navalsinh Vaghela’s case, has come to a categorical conclusion that if a candidate after the poll and before the declaration of the result dies, then the only remedy left would be to have by- election within the stipulated period of time and while doing so rejected the contention that the candidate securing the second highest votes would have to be declared as a winner. 18. Hence, I answer the above point raised by holding that in the event of a successful candidate in an election having expired after the poll but before the declaration of results he is deemed to be an elected - 19 - NC: 2025:KHC:18128 WP No. 6635 of 2025 director, his death would result in the vacancy in the position of the director requiring bye-election to be held. 19. In view of my answer the point raised, no grounds being made out, the petition stands dismissed. SD/- (SURAJ GOVINDARAJ) JUDGE AMM List No.: 2 Sl No.: 41