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M.A.R.V.S. Sai Babu Vs. Commissioner and Registrar of Co.Op. Societies, Government of Andhra Pradesh, Hyderabad and Others - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 15711 of 1995
Judge
Reported in1999(2)ALD319; 1999(2)ALT233
ActsAndhra Pradesh Co-operative Societies Rules, 1964 - Rule 22-AAA; Andhra Pradesh Co-operative Societies Act, 1964 - Sections 3(1), 31(3), 32(7) and 130; Constitution of India - Article 14
AppellantM.A.R.V.S. Sai Babu
RespondentCommissioner and Registrar of Co.Op. Societies, Government of Andhra Pradesh, Hyderabad and Others
Appellant Advocate Mr. M. Ravindranath Reddy, Adv.
Respondent Advocate Government Pleader for Co-operation
Excerpt:
.....government order - rule 22-aaa (as amended by g.o.ms.no. 732 (co-op-iv) ) of andhra pradesh co-operative societies rules, 1964 - postponement of notified election by government on reason of irregularity in voters list contrary to statutory provisions - government order annulling notification and postponing election seems contrary to statute - held, such government order unconstitutional. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and..........of election and arranges conduct of elections in the manner prescribed in the rule. the relevant rule is rule 22 of a.p. cooperative societies rules framed in exercise of the rule-making power mentioned above. the election authority for the class of societies specified in section 31 (3xa) of the act is the registrar i.e., the main registrar referable to section 3(1) and for all other class of societies, it is the collector of the district in which the head office of the society is situated. the election authority shall in-charge of formation of constituencies and to appoint election officer for each society, and communicate such appointment to the president or chief executive of the society by registered post acknowledgment due and time for such communication varies having regard to.....
Judgment:
ORDER

B. Subhashan Reddy, J.

1. Thewrit petitions have been filed questioning the action of the authorities, be it the Governmentor the District Collectors, in stalling the election to the Committees of the respective Co-operative Societies by invoking the power under Rule 22-AAA of A.P. Co-operative Societies Rules. The said rules have been framed by virtue of rule-making power under sub-section (1) of Section 130 of the A.P. Co-operative Societies Act, 1964 which reads :

'The Government may by notification published in the Andhra Pradesh Gazette make rules for carrying out all or any of the purposes of this Act for the whole or any part of the Stale and for any class of societies.'

2. Hitherto, the tenure of the Committees elected was three years, but the same has been increased to five years. The societies concerned in this batch of writ petitions had elected Committees to manage their respective societies, but their term had expired and as such, elections were to be conducted. The election authority has issued notification appointing Election Officers and the dates for elections were set. But, later on, they were stayed by virtue of the orders passed by the Government in some cases and by the District Collectors in some others. The details are mentioned below:

Writ Petition No.Scheduled date of electionDate of Stay

15057 of 199526-7-199511-7-199516965 of 199530-7-199521-7-199517200 of 199526-7-199525-7-199517190 of 199530-7-199527-7-199517361 of 199530-7-199527-7- 199517093 of 199526-7-199525-7-199516179 of 199530-7-199516-7-199517284 of 199526-7-199525-7-199516200 of 199530-7-199527-7-199516383 of 199526-7-199521-7-199518057of 199530-7-199524-7-199521278 of 199510-9-19958-9-199516697 of 199526-7-199525-7-199517378 of 199531-5-199521-5-199515286 of 199526-7-199514-7-199515976 of 199526-7-199513-7-199516728 of 199526-7-199525-7-199517244 of 199526-7-199522-7-199516572 of 199530-7-199523-7-199515377 of 199526-7-199511-7- 199515340 of 199530-7-199513-7-199515444 of 199520-7-199511-7-199518906 of 199530-7-199529-7-199516034 of 199526-7-199516-7-199516993 of 199526-7-199525-7-199517312 of 199530-7-199526-7-199521309 of 199530-7-199529-7-199520386 of 199510-9-19958-9-199517052 of 199526-7-199521-7-199515711 of 199530-7-199512-7-1995

3. The election authority notifies the date of election and arranges conduct of elections in the manner prescribed in the rule. The relevant rule is Rule 22 of A.P. Cooperative Societies Rules framed in exercise of the rule-making power mentioned above. The election authority for the class of societies specified in Section 31 (3Xa) of the Act is the Registrar i.e., the main Registrar referable to Section 3(1) and for all other class of societies, it is the Collector of the District in which the head office of the society is situated. The election authority shall in-charge of formation of constituencies and to appoint Election Officer for each society, and communicate such appointment to the President or Chief Executive of the society by registered post acknowledgment due and time for such communication varies having regard to the class of societies. The constituencies have to be formed in accordance with sub-rule (2) and the preparation of list of members eligible to vote has to be made and every person who is a member of the society thirty days prior to the date of poll shall only be eligible to vote. The Election Officer is enjoined to issue a notice of election and communicate it by registered post by acknowledgment due to the President or Chief Executive of the society within the time stipulated and stipulation oflime also varies having regard to the nature of the societies. The next sfage is nomination and every member whose name is found in the voters list is entitled to file nomination. The nominations will be scrutinized by the Election Officers on the appointed day and time and if he finds that the nominations have to be rejected because of the non-compliance of the legal provisions, he will reject. If the nominations are found in order, he will display the list of valid nominations. At that stage i.e., before voting, if the number of candidates are in excess of the posts, then alone the poll will be held. Otherwise, the candidates have to be declared as having been elected, as no poll is necessary, when the number of candidates are less than the number of posts. It is needless to mention that in a case of direct election, if there is more than one contestant, necessarily election has to take place. The poll has to be held as scheduled and it cannot be adjourned except when the same is interrupted or obstructed by a riot or affray or by caused beyond the control of the Election Officer. This is for prc-poll situation. Again during the process of voting, if the proceedings are obstructed by any riot or for any other sufficient cause, the Election Officer has got the power to stop the polling after recording his reasons for such an action. Even after polling, where counting of votes is rendered impossible on account of obstruction or loss of poll boxes or any other sufficient reasons, the Presiding Officer shall adjourn the poll and submit immediately a detailed report of the circumstance to the authority who appointed him as Election Officer and within 15 days from the date of which the poll is adjourned, the Election Officer shall communicate to the Members in any of the modes specified in clause (b) of sub-rule (4) the place, date and time at which the poll shall be held afresh and results declared. But the poll so conducted afresh can only be among the contestants of the adjourned election and with the voters who were enlisted for the adjourned election. After the poll orrepoll as mentioned above, results of the same are declared andthe Committee is constituted with the Office Bearers and then the management is entrusted to the said elected body.

4. From the discussion of the scheme envisaged under Rule 22 of the Rules relating to conduct of elections to the committees of co-operative societies, the power to defer-the poll or result of the poll either before the poll or afterwards, is conferred upon the Election Officer and may be the Government thought that apart from the Election Officer such a power should also be vested simultaneously with the District Collector as also the Government. That is what Rule 22-AAA contemplates. It is apt to extract the said Rule :

'22-AAA. Notwithstanding anything contained in these rules the Government or the Election Authority, may, for the reasons to be recorded in writing direct from time to time, the postponement or alteration of the date or the dates of election to the societies fixed or commenced under Rule 22 or Rule 22-B at any stage thereof and the Election Officer shall give effect to the directions issued under this Rule. On such postponement or alteration of the date or dates of election, the earlier notification shall stand rescinded in all respects and the eligibility of the voters shall be determined in accordance with sub-rule (3) of Rule 22.'

5. Mr. M. V. Ramana Reddy, the learned senior Counsel, led the arguments on behalf of the petitioners and the other learned Counsel have adopted his arguments. Mr. M. V. Ramana Reddy has taken us to the various statutory provisions of the A.P. Cooperative Societies Act as also the Rules framed thereunder. His submission is that when the conduct of elections is already guided by a statutory rule, i.e., Rule 22 of the A.P. Co-operative Societies Rules, the election has to be conducted only in accordance with the procedure set in the saidrule and Rule 22-AAA is arbitrary both ior the reason that it confers uncanalised, unbridled and unguidcd power as also for the reason that the entire exercise leading to preparation of voters' list gets nullified and what is more, the entire election process gels cancelled for any reason whatsoever felt by the District Collector or the Government and that too for extraneous considerations resulting in redoing the exercise again and again. He illustrates by taking example of a candidate/s having influence with the Government and its authorities, but with the existing voters list he is not sure of election, he can get the same postponed paving way for admission of more members of his choice and then get the election process initiated afresh and tilt the balance. He submits that once the election process commences, the Election Officer is the absolute authority and that the Government or Collector cannot have any say in the matter and that there are sufficient guidelines in Rule 22 to act appropriately and no alien interference is called for.

6. Mr. V. Venkalaramanaiah, the learned Advocate General, counters the above argument advanced by the petitioners, submitting that Rule 22-AAA of the A.P. Co-operatives Societies Rules is in addition to the powers conferred on the Election Officer and not in derogation of the same and that vesting of such power in authorities other than the Election Officer is not alien to the scheme of due conduct of elections and that the said rule is not arbitrary violating Article 14 of the Constitution of India, as, reasons have to be recorded for exercising the power under the above Rule and as the said reasons are always subject to judicial review, it cannot be said that the rule confers uncanalised, unbridled and unguided power leading to any arbitration action. He supports the rule as being necessary to meet the sudden situations in connection with the elections. Ultimately, the learned Advocate General submits that even if the rule is found to beoffensive in some respects, the rule need not be struck down in entirety and can be read down suitably.

7. A.P. Co-operative Societies Act, 1964, as amended from time to time, is pursuant to the co-operative movement and the co-operative movement is based upon the democratic principles. There cannot be any element of politics in the co-operative movement. It is beyond the political considerations. The co-operative society is formed having regard to the objects and intendment as envisaged in bye-laws. It may be a Fishermen Co-operative Society, a Consumer Co-operative Society, a Toddy Tappers Co-operative Society, a Weavers Society, and a Labour Co-operative Society, and the idea behind is that the persons regardless of any other consideration, who fit in the description as being eligible to become members, can apply for membership and then will be admitted subject to the satisfaction of the conditions fixed in that regard. Election may be by secret ballot or by show of hands. But, election is a must so as to represent and manage the society. General Body is the ultimate authority and entrust the functions of day-to-day management to the Committee which has to be elected. The tenure of the committee is fixed and that is under the statute and that is inflexible and there is mandate under the statute that it shall be the duty of the authority to hold elections to the office of the Members of the committee before the expiry of the term Then, there is an exception contained in Section 32(7)(a) of the Act, which says that if in the opinion of the Government or the Registrar, it is not possible to call a general body meeting for the purpose of conducting election of members of the Committee, the Government in respect of such class of societies, as may be prescribed and the Registrar in all other cases may appoint person/s to manage the affairs of the society for a period not exceeding six months and the Government may, on their own, and the Registrar with the previous approval of theGovernment, extend from time to time, such period beyond six months, so, however, that the aggregate period including the extended period if any, shall not exceed three years. But, this is only an enabling provision and has to be resorted to by the Government or the Registrar, as the case may be, in very exceptional cases warranting such exercise of power. The circumstances cannot be forecast and in exigencies, the authorities mentioned above may have to exercise the power and they cannot be stated with precision in the statute. In any case, whenever a decision is challenged, the Court may examine the necessity or otherwise of continuing the person-in-charge. But, a reading of the above provision makes it abundantly clear that this power has to be exercised only when the Government or the Registrar form an opinion that election cannot be conducted and the reasons should be stated as to why the election cannot be conducted and the said reasons should be plausible and should be backed-up by material to sustain the said exercise of the power, which is an exceptional one. It is pertinent to mention that the issue relating to the validity of membership of a society including that of wrong admission of a member or non-inclusion of a valid member in the rolls of the society is an issue to be decided before the election process begins and that can be a valid ground to invoke Section 32(7)(a) of the Act to set right the tilings and then proceed for the elections and appoint a person-in-charge to manage the affairs of the society in the interregnum. But, once a decision is taken to hold the elections and the election process commences by issue of notification, Section 32(7)(a) of the Act has got no role and any dispute in connection with the election, be it of the nomination, of improper electoral roll and other aspects, have to be settled only by way of a judicial adjudication contemplated in Section 61(3) of the Act, which reads :

'61(3)(a) Every dispute relating to, or in connection with, any election to a committee of a society referred to inclause (a) of sub-section (3) of Section 31, shall be referred for decision to a Subordinate Judge, or where there is no such Subordinate Judge, to the District Judge having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final.

(b) Every dispute relating to, or in connection with, any election to the office of President of the Primary Co-op. Society referred to in sub-section (5) of Section 31 or to a committee of such class of societies, as may, by notification in the Andhra Pradesh Gazette, be specified by u the Government in this behalf and referred to in clause (b) of sub-section (3) of Section 31, shall be referred for decision to a District Munsiff having jurisdiction over the place where the main office of the society is situated, and his decision thereon shall be final.'

Again Section 61(3) of the Act is subject to Section 61(4) of the Act, which mandates that such a dispute relating to or in connection with any election can be entertained only after declaration of the result.

8. In view of what is stated supra, it is clear that the statute contemplates dealing of disputes regarding any matter including that of the irregularities in the list of members of the society by the authorities under the Act and particularly the concerned Divisional Co-operative Officer, but before the commencement of the election process and pending settlement of such disputes, Section 32(7)(a) of the Act can be invoked, but the same is only before the start of election process. But, if the election process commences, the only method of resolving any dispute relating to or in connection with the election is only by way of invocation of the remedy contained in Section 61(3) of the Act and that too after the declaration of result and not before. It is not that the Government is powerless to give directions and in fact such a power is conferred in Section 131 ofthe Act wherein the Government may generally or in any particular matter under the act, issue such orders/directions as they may consider necessary to the Registrar of Co-operative Societies and thereupon he shall give effect to such orders or directions and shall report to the Government in due course the result thereof. Under sub-section (2) of Section 131 of the Act, wherever a direction has been given under sub-section (1), the Government is empowered to call for and examine the record of the proceedings of the Registrar and pass such orders in the case as they may think fit. The proviso added on the lines of audi alteram partem make it obligatory to the Government to issue prior notice to the person who is going to be affected by the order. But, this power of issuance of directions under Section 131 of the Act is a residual power and can be invoked when specific power is not available under the Act. As already stated above, as Section 32(7)(a) of the Act deals with the matters relating to the factors which make the conduct of the poll not possible and thus enabling the authorities to defer the conduct of elections till the matters are set right, and irregularities relating to admission of members is one of such factors. As such, Section 131 of the Act has got no application to such cases. Again, for any issue relating to or in connection with the election, can only be settled by a judicial determination under Section 61(3} of the Acl, but after the declaration of results of the poll. Here also applicability of Section 131 of the Act is ruled out. This being the scheme of the Act, let us now proceed to test Rules 22 and 22-AAA as to whether they conform to the statute or deviate from the same.

9. It is needless to mention that every rule framed should be subsidiary to the provisions of the Act and the provisions of the Act always prevail over the Rules and the Rules can sustain only if they operate for carrying out the purposes of the Act. There is nothing arbitrary in conferring the power either to the Government or the DistrictCollector to exercise the power to postpone the elections. We are of the considered view that conferment of such power is not arbitrary. As rightly pointed-out by the learned Advocate General that reasons are to be given and when the reasons are not relevant for postponing the elections, this Court in exercise of its judicial power can always annul the same. Like the statute, the rules cannot also apprehend all such situations warranting the postponing of elections and each case has to bejudged on its own material as to whether there is a reasonable and rationale basis conforming to the intendment and object of the co-operative movement and the concerned statutory provisions; essence being the free and fair elections. If the action postponing the elections is unsustainable, we quash the said action and bring order into the process.

10. The matter relating to irregularities in the electoral list-either wrong admission of members or wrong deletions of the valid members from the electoral roll-is not a matter which falls for action under Rule 22-AAA of the Rules in view of the discussion mentioned supra as this is one squarely covered either by Section 32(7)(a) of the Act before the commencement of the election process or Section 61(3) of the Act sub-sections (3) and (4) of Section 61 of the Act after the election process starts. In the instant cases, there is no dispute that the process of election has commenced and as such, the action in postponing the elections on the ground of irregularities in the voters' list is invalid as being contrary to the provisions contained under sub-sections (3) and (4) of Section 61 of the Act. In that respect, the impugned rule traverses beyond the statutory provision and consequently, the said action in postponing the elections on the ground of irregularities in the voters' list is set aside. WP Nos.17190, 17361, 16179, 17284, 16200, 16383, 16697, 17378, 15286, 17244, 16572, 15444, 16034, 16993, 17312, 17447 and 20836 of 1995 relate to such cases. Insofar as the action taken in WPNos.15057,16965, 17200,21278, 15976, 16728, 15377, 15340, 18906, 17052 and 15711 of 1995 are concerned, either reasons are not mentioned in some cases or the reasons mentioned are not germane and relevant for postponing of the elections and as such the action in the said cases postponing the elections is set aside. In WP No.17093 of 1995 the reasons mentioned arc quite plausible and relevant as because of Dharna, there was a law and order problem and the elections were correctly postponed. Likewise in WP No.18057 of 1995 the elections were rightly postponed as there was a rioting and snatching away of the ballot papers from the Election Officer and in fact the ballot papers were torn off.

11. Rules 22 and 22-AAA of the Rules have to be harmoniously read and construed and Rule 22-AAA cannot be read as more than conferring the power on the Collector and the Government of postponing the poll apart than reasons available to the Election Officer under Rule 22 and as such, the Government or any of its authorities cannot postpone the poll for reasons other than staled in Rule 22, i.e., rioting or any other sufficient cause and as already stated above, irregularities in the voters list, after the commencement of election process is not one among such sufficient causes. Further, the postponement again have effect of cancelling the entire election process resulting in conducting the elections afresh and even allowing fresh members to be enrolled. If Rule 22-AAA has to sustain to be in tune with the statutory provisions mentioned above and as Rule 22 is in consonance with the above statutory provisions, the postponed election has to start from the stage where it was stopped with the same contestants and with the same voters list. As such, the words 'on such postponement or alteration of the date or dates of election, the earlier notification shall stand rescinded in all respects and the eligibility of the voters shall be determined in accordance with Rule 22(3)introduced by G.O. Ms. No.732 (Co-op.IV), dated 25-10-1991 are ultra vires the Act and unconstitutional.

12. In view of what is stated supra, we hold that:

(1) Rule 22-AAA of the Andhra Pradesh Co-operative Societies Rules, 1964 is infra vires the Act excepting the offending portion 'on such postponement or alteration of the date or dates of election, the earlier notification shall stand rescinded in all respects and the eligibility of the voters shall be determined in accordance with Rule 22(3), inserted by G.O. Ms. No.732 (Co.op.IV), dated 25-10-1991.

(2) G.O. Ms. No.732 (Co.op.IV) dated 25-10-1991 inserting the above words in Rule 22-AAA is struck down as being ultra vires the Act.

(3) Rule 22-AAA of the A.P. Co-operative Societies Rules, 1964 cannot be invoked on the ground of irregularities in the voters' list.

(4) Invocation of Rule 22-AAA of the A.P. Co-operative Societies Rules cannot have effect of cancelling the election notification issued earJier or enabling fresh enrollment of members.

13. In the result, WPNos.15711, 17052, 15340, 15057, 15444, 15286, 16572, 16728, 16965, 17190, 17200, 17244, 17284, 17361, 18906, 16034, 15976, 15377, 16179, 16200, 16383,16993, 17312, 16697, 21278, 17378, 20836 and 17447 of 1995 are allowed while WP Nos. 17093 and 18057 of 1995 are dismissed. There shall be no order as to costs.


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