* THE HONOURABLE SRI JUSTICE P.S. NARAYANA + WRIT PETITION NO.16267 OF 2009 % Dated 08-09-2009 # B. Neelakantappa and another ... PETITIONERS V. $ The Government of Andhra Pradesh Rep. By its Principal Secretary, Agriculture and Co-operation (Co-op.I) Department and others ...RESPONDENTS ! Counsel for the Petitioner : Sri K. Sita Ram ^ Counsel for the Respondent Nos. 1 to 5 : GP for Co-operation ^ Counsel for the Respondent No. 6 : Sri B. Vijaya Bhaskar < Gist : > Head Note: ? Cases Referred: C/15 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 16267 of 2009 Between: 1 B. Neelakantappa S/o. Mallanna, R/o. Yemmiganur, Kurnool District. 2 B. Mukkanna S/o. B. Sunkanna R/o. H.No. 16/197, Gonegandla Road, Yemmiganur, Kurnool District. ... PETITIONERS AND 1 The Government of Andhra Pradesh, Rep. by its Principal Secretary Agriculture & Cooperation (Coop.I) Department, Secretariat Buildings, Hyderabad. 2 The Commissioner of Co-operation and Registrar of Cooperative Societies, Gruhakalpa, Nampally, Hyderabad. 3 The District Collector / Election Authority, Kurnool. 4 The District Cooperative Officer, Kurnool. 5 The Divisional Co-operative Officer, Adoni, Kurnool District. 6 Edigi Narasimhulu S/o. not known R/o. D.No. 9/270, Kolagotla Road, Yemmiganur, Kurnool District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ order or direction preferably in the nature of WRIT OF MANDAMUS declaring the action of the 1st respondent in staying the election to the Yemmiganur Co-operative Stores, Limited No. Y-341 by its proceedings Memo No. 7754/Co-op 1(2)/2009-1 dated 20-6-2009 as illegal, arbitrary, contrary to Rule 22-C of A.P. Co- operative Societies Rules, 1964 and consequently set aside the same. Counsel for the Petitioner :MR.K.SITA RAM Counsel for the Respondents 1 to 5 : GP for Co-operation Counsel for R6 : Sri. B. Vijaya Bhaskar The Court made the following : THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.16267 OF 2009 ORDER: This Court ordered notice before admission on 10.08.2009. Learned Government Pleader for Co-operation had taken notice on behalf of R1 to R5. In view of the urgency pleaded, the learned counsel representing the writ petitioners was directed to take notice to R6 and file proof of service. Sri B. Vijaya Bhasker entered appearance on behalf of R6 on 27.08.2009 and requested time to file counter affidavit. R6 filed counter affidavit. 2. Sri K. Sitaram, learned counsel representing writ petitioners, would maintain that the order under challenge cannot be sustained for the reason that the stay of election can be made only under three specified circumstances as contemplated by Rule 22(c) of A.P. Co- operative Societies Rules, 1964 and on a reading of the order, since, the conditions had not been satisfied and no reason as such had been recorded the impugned order cannot be sustained under Rule 22(c) of the A.P. Co-operative Societies Rules, 1964 (hereinafter in short referred to as “the Rules” for the purpose of convenience). 3. Learned Government Pleader for Co-operation would maintain that it is true that the order under challenge is not in accordance with Rule 22(c) of the Rules aforesaid. 4. Sri B. Vijaya Bhaskar, however, would submit that there are several irregularities and in the light of the same, the order under challenge cannot be said to be illegal or without jurisdiction and hence the writ petition to be dismissed. 5. Heard the learned counsel. 6. The writ petition is filed for writ of mandamus declaring the action of the 1st respondent in staying the election to the Yemmiganur Co- operative Stores Limited, No.Y-341 by its proceedings Memo No.7754/Co-op 1(2)/2009-1 dated 20.06.2009 as illegal, arbitrary, contrary to Rule 22(c) of the Rules and consequently to set aside the same. 7. It is stated that the writ petitioners are the members of the Yemmiganur Co-operative Stores Limited, Yemmiganur. The said society was started by Late Sri Machani Somappa in the year 1942. An elected body was functioning in the year 2005, in which year the entire elected body was made to resign. From 2005 to September, 2007 an official Person-in-Charge managed the affairs. From September, 2007 to till date a committee of nominated Persons-in-Charge has been managing the affairs. 8. The Members have been urging the official respondents to conduct elections to the society and handover the Management to the elected body. After persuasion for a long time, the 3rd respondent by its proceedings Rc.No.2631/2006-B dated 30.05.2009, appointed Sri M.Balakrishnudu, Assistant Registrar/Superintendent, Office of the Divisional Co-operative Officer, Adoni as the Election Officer to conduct the Election to Yemmiganur Co-operative Stores Limited. The poll date was fixed as 30.06.2009. A detailed schedule is given date wise to conduct elections in the said proceedings. 9. The details of the schedule are as follows: i) Issue of election Notice by the Election Officer 15.06.2009 ii) Receipt of nominations 22.06.2009 iii) Scrutiny of nomination (From 10:00 AM to 03:00 PM) 23.06.2009 iv) Publication of Valid List of nominations (after completion of Scrutiny) 23.06.2009 v) Withdrawal of Nominations (From 10:00 AM to 03:00 PM) 24.06.2009 vi) Publication of Final list of valid nominations after 05:00 PM 24.06.2009 vii) Date of Poll (From 07:00 Am to 02:00 PM) 30.06.2009 viii) Counting and declaration of Poll (after Poll) 30.06.2009 ix) Election of Office bearers 02.07.2009 10. It is further stated that pursuant to the said proceedings of the 3rd respondent, the Election Officer, issued election notice in Form-I in his proceedings Rc.No.1/Elections/09, dated 15.06.2009. Thus election process started for conduct of elections. Even before the 2nd stage is started, by receipt of nominations, the 6th respondent appears to have approached the 1st respondent/Government for stay of conducting of elections. The 1st respondent purportedly exercising the powers under Rule 22(c) of the Rules, stayed the elections, by its Memo No.7754/Coop.I(2)/2009-1, dated 20.06.2009, which is impugned in this writ petition. 11. Pursuant to the said order of stay, the Election Officer by his notice dated 22.06.2009 informed the members that the 1st respondent stayed the elections. Neither Election Officer nor the 3rd to 6th respondents made available the copy of the order of the 1st respondent dated 20.06.2009. The petitioners were made to run from pillar to post to obtain the impugned order. The petitioners obtained the order copy from the office of the 3rd respondent during the last week of July, 2009. 12. It is further stated that from a reading of the impugned order dated 20.06.2009 it is clear that the main grievance of the 6th respondent was that though the members of the society were more than 2000, only 70 names were shown in the eligibility list. According to the 6th respondent names of about 2000 members who paid Rs.5/- as membership subscription were deleted from the voters list, therefore, the petitioneres were denied the opportunity of participating in elections. 13. In this context it is relevant to note Rule 18 of the Rules. “Rule 18: Minimum Business to be transacted or services or facilities to be utilised by a Member of other societies:- No member of society, shall have the right to stand as a candidate or to vote in any election to the society, unless he transacts the minimum value of business or utilities the minimum value of services or facilities as prescribed in the bye-laws, during a co- operative year. Provided that a member of a society shall be eligible to exercise the right to vote only if he,__________ a) Subscribes a minimum share capital Rs.300/- b) Contributes minimum thrift of Rs.200/- in a year or as may be enhanced in their bye-laws from time to time. c) Is a member of the society for a continuous period of 12 months. d) Is not in default of any amount due in cash or kind to the society for a period exceeding three months; and e) Is not delegate of a society which is under proceeding for de-registration or liquidation or classified as such in audit; Provided further that a list of eligible members with right to vote and those without right to vote shall be prepared and displayed on the notice Board of the society and branches prior to holding of any General Body meeting or holding of elections in the manner is laid down in the bye-laws. Note: Ineligibility to vote does not amount to ineligibility to attend and participate in the meeting. (Provided further that the Registrar may exempt or fix a lower amount of minimum share capital and or a lower amount of minimum thrift for any society or a class of societies depending upon the economic and social status of the members of the society.)” 14. A bare reading of the above provision makes it clear that a member of a society shall be eligible to vote only if he subscribes a minimum share capital of Rs.300/-. Thus admittedly the members whose names are removed paid only Rs.5/-. Therefore, the only grievance of the petitioner has no legs to stand. 15. It is further submitted that once the election process had started, the 1st respondent should not and cannot stay the same except under the circumstances enumerated under Rule 22(c) of the Rules. The said Rule is as under: “Rule 22(c) (1) Notwithstanding anything contained in these rules, the Government or the Election authority may direct the postponement of elections under one or more of the following circumstances:- i) Break down of law and order affecting the peaceful and lawful conduct of elections. ii) Any natural calamity that prevents the conduct of election particularly, voters from participation in the election. iii) Where there is a reasonable apprehension that voters will not be allowed to vote frankly and freely. b) The postponement shall be done only by issue of an order which shall specify the grounds of postponement. After such postponement the election process shall be recommended when the conditions become conducive for re-commencing of election, by issue of an order by the Authority that has postponed the elections. The process will re-commence from the stage at which it was obstructed or interrupted.” 16. Thus it is clear that the impugned order of the 1st respondent is contrary to law, passed in colourable exercise of power, and in such circumstances, the writ petition had been filed. 17. In the counter affidavit filed by the 6th respondent it is stated that the 6th respondent is a member of the Yemmiganur Co-operative Stores Limited, Yemmiganur and it is operating its functions in the local limits of Yemmiganur town. It is also stated that the 3rd respondent by his proceedings Rc.No.2631/2006-B, dated 30.05.2009 had issued election notification for conducting elections to the Yemmiganur Co- operative Stores Limited and appointed the Assistant Registrar/Superindent, Office of the Divisional Co-operative Officer, Adoni, as an Election Officer for conducting elections. 18. In pursuance of the said election notification, the Election Officer issued election notice dated 15.06.2009 to the Person-in-Charge of the Yemmiganur Co-operative Stores Limited, under Rule 22 (2)(b) of the Rules. On the same day i.e., on 15.06.2009, the Chairman and Person-in-Charge of the Yemmiganur Co-operative Stores Limited, is stated to have prepared the eligible voters list and alleged to have affixed on the notice board of the Stores by certifying that no-objections were received from any member. 19. It is stated that the Rule 22 (2) (b) (ii) contemplates that the Chief Executive Officer/ President of the Society shall prepare and publish the list of members eligible to vote within seven (7) days after receipt of the communication from the Election Officer. Further the Rules 22 (2) (b) (iii) contemplates the Chief Executive Officer/President of the Society shall invite the claims or objections from the members within seven (7) days thereafter. As per the Rule 22 (2) (b) (vi) of the Rules, after receipt of the final list of members eligible to vote from the society, the Election Officer shall verify the cases and satisfy himself that the list conforms to the criteria for eligibility to vote as laid down under Act and Rules. If there are any omissions or commissions noticed while scrutinizing the list, the Election Officer shall refer the same to the Chief Executive Officer/President of the Society for rectification. After such rectification, the Election Officer shall publish the final list of the voters along with the schedule as prescribed in Form-I. 20. It is further stated that in the present case, the Election Officer issued election notice on 15.06.2009 and the final list of voters has been prepared and alleged to have affixed on the notice board on 15.06.2009. The Chairman and Person-in-Charge of the Stores did not invite the claims or objections from the members of the Stores as per the Rules, hence, there is no opportunity to the members of the Stores to file claims/objections to the voters list. It is further stated that even as per the 1st proviso to Rule 18 of the Rules, the list of eligible members with right to vote and those without right to vote shall be prepared and displayed on the notice Board of the society prior to holding of any General Body Meeting or holding of elections in the manner as laid down in the bye-laws. There is clear violation of mandatory provisions under the Rules. Hence, conducting of elections to the Yemmiganur Co-operative Stores Limited is illegal and unsustainable. 21. It is further stated that a list was prepared only in respect of eligible voters but no list was prepared in respect of ineligible voters in terms of 1st proviso to Rule 18 of the Rules. It is further stated that there are as many as 2000 members in the stores. However, the voters list has been prepared in respect of only 70 persons. However, other irregularities also have been specified in para 4 and 5 of the counter affidavit filed by 6th respondent and it is further stated that this being only an interlocutory order pending the main case, stay had been granted and main case is pending disposal. 22. In the light of the Rule 22(c) specified supra this Court is of the considered opinion that the order under challenge cannot be sustained. However, let the main matter be disposed of at an early date. 23. Subject to the above observation, the writ petition is allowed, however, the first respondent is at liberty to dispose of the main case after hearing the parties concerned. There shall be no order as to costs. ____________________ (P.S. NARAYANA, J) 08.09.2009 Note: 1. C.C. in one week. 2. L.R. Copy to be marked B/o. MD