IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU W.P.Nos. 26118 & 26121 of 2008 W.P.No.26118 of 2008 Between: Farmers' Rural Extension Service in Horticulture Growers' & Consumers' Coop. Marketing Society Ltd., represented by its President Dasari Venkateshwara Rao S/o.D.V. Subba Rao, Tenali - 522 201 (AP), Guntur District. ..... PETITIONER AND 1 A.P. Cooperative Tribunal, represented by the Secretary, Vijayawada, Krishna District (A.P.) 2 Election Officer Guntur District Cooperative Marketing Society Ltd., Guntur, O/o. The Dy. Registrar of Cooperative Societies, Narasaraopet (Post), Guntur District. 3 Gazula Moha, President, Guntur District Cooperative Marketing Society Ltd., and President of Vemuru P.A.C.S., Vemur (Post & Mandal), Tenali Taluk, Guntur District. (A.P.) 4 Boddu Sambaiah, Vice-President, Guntur District Cooperative Marketing Society Ltd., and President of Potlapadu P.A.C.S., Potlapadu (Post) Via Medikonduru, Sattenapalli Taluk, Guntur District. (A.P.) 5 Eeda Parasu Rami Reddy, Director, Guntur District Cooperative Marketing Society Ltd., and President of Reddipalem P.A.C.S., Reddipalem (Post), Guntur Rural Mandal, Guntur District. (A.P.) 6 Vicharapu Veeraiah, Director, Guntur District Cooperative Marketing Society Ltd., and Nagaram P.A.C.S., Nagaram (Post), Repalle Mandal, Guntur District. (A.P.) 7 Kowtarapu Subba Rao, Director, Guntur District Cooperative Marketing Society Ltd., and President of Isukapalli Hand Weaver's Coop. Production Sales Society Ltd., Isukapalli (Post), Repalle Mandal, Guntur District. (A.P.) 8 Nannapaneni Ankineedu, Director, Guntur District Cooperative Marketing Society Ltd., and President of Tenali Cooperative Canteen, Vinayakagudi Bazar, Gandhinagar, Tenali (Post), Guntur District. (A.P.) 9 The Registrar of Cooperative Societies, A.P./ Chief Election Authority, Chandra Vihar, Nampally, Hyderabad (A.P.) 10 The Guntur District Cooperative Marketing Society Ltd., Represented by the Business Manager, Guntur (A.P.) .....RESPONDENT(S) 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 to issue an order or direction or writ more appropriately a Writ of Mandamus to declare the dismissal of Election O.P.No.39 of 2005, dated 28.8.2008 on the file of the A.P. Cooperative Tribunal, Vijayawada as illegal and set aside the same by declaring the election process conducted by the 2nd Respondent to the 10th Respondent Society Managing Committee on 17.11.2005 as illegal and also the election of office bearers of the 3rd to 8th Respondents as illegal and set aside the same by allowing the Election O.P.No.39 of 2008 as prayed for and pass such other order or orders. Counsel for the Petitioner:MR.K.RAJANNA Counsel for the Respondent No.: GP FOR COOPERATION W.P.No. 26121 of 2008 Between: Farmer's Rural Extension Service in Horticulture Growers & Consumer's Coop Marketing Society Ltd Rep.by its President Dasari Venkateswara Rao S/o.D.V.Subba Rao(63) years Tenali-522201(AP) Guntur District ..... PETITIONER AND 1Government of Andhra Pradesh Rep.by its Secretary Agriculture & Corporation) Department,Secretariat Hyderabad(AP) 2The Commissioner of Corporation and Register of Cooperative Societies A.P Chandra Vihar Nampally Hyderabad(AP) 3District Cooperative Officer/Joint Registrar Guntur District (AP) 4A.Srinivasa Rao Director of Guntur District Marketing Cooperative Society Ltd and President of Nizampatnam Primary Agriculture Cooperative Society Ltd Nizampatnam(Post&Mandal) Guntur District(AP) 5Gajula Mohan President of Guntur District Marketing Cooperative Society Ltd and President Vemur Primary Agriculture Cooperative Society Ltd Vemur(Post) Tenali Taluk Guntur District 6Boddu Sambaiah Vice President Guntur District Coopertive Marketing Society Ltd and President of Potlapadu P.A.C.S Polatapadu(Post) Via Medikonduru,Sattenapalli Taluk,Guntur District 7Eeda Parasu Rami Reddy Director Guntur District Cooperative Marketing Society Ltd and President of Reddipalem P.A.C.S Reddipalem(Post) Guntur Rural Mandal Guntur District (AP) 8B.Hanumanaik Director Moddukuru P.A.C.S Ltd Modukur(Post) Chungur(M) Via Tenali Guntur District(AP) 9Karri Kamalamma Director Yerrabalem P.A.C.S Ltd Yerrabalem(Post) Mangalagiri Taluk Guntur District .....RESPONDENT(S) 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 to issue an order or direction or writ more particularly one in the nature of Mandamus to declare the action of the official Respondents in not taking any action against 4th to 9th Respondents as per Section 21-A of A.P Cooperative Society Act 1964 and Rule 24 the A.P Cooperative Societies Rules 1964 as illegal and further direct the officials Respondents to take immediate action by passing disqualification orders against 4th to 9th Respondents as bearers of their respective positions in the respective Cooperative Societies as per Section 21-A of the A.P Cooperative Societies act 1964 and Rule 24 of the A.P Cooperative Societies Rules 1964 and pass Counsel for the Petitioner:MR.K.RAJANNA Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.Nos.26118 & 26121 of 2008 COMMON ORDER: In these two writ petitions, common questions of law and fact arises for consideration, therefore they are being disposed of by this common order. For the purpose of convenience, the facts as narrated in W.P.No.26118 of 2008 are extracted hereunder: This writ petition is filed seeking a Mandamus declaring the dismissal of Election O.P.No.39 of 2005 dated 28.8.2008 on the file of A.P. Cooperative Tribunal, Vijayawada as arbitrary and illegal and consequently declare the election process conducted by the 2nd respondent to the 10t h respondent society on 17.11.2005 as illegal and also the election of respondents 3 to 8 as office bearers, as illegal and set aside the same. It appears, petitioner is the Farmers’ Rural Extension Service in Horticulture Growers and Consumers Coop. Marketing Society Ltd., represented by its President. According to the petitioner, it had filed Election O.P.No.39 of 2005 before the A.P. Cooperative Tribunal, Vijayawada seeking to declare the elected managing committee as arbitrary, illegal and contrary to the provisions of A.P. Cooperative Societies Act, 1964 and the Rules made thereunder. Elections to the 10th respondent-Marketing Society was scheduled to be conducted in view of expiry of term of the elected managing committee. The 9th respondent has appointed the 2nd respondent as Election Officer and in turn the 2nd respondent has issued election notification for conduct of elections to the managing committee of 10th respondent vide notification dated 13.11.2005 fixing the election schedule. There were two categories of voters in the 10th respondent’s society i.e. ‘A’ group and ‘B’ group voters. Under ‘A’ group, there were six seats to be filled up. Even under six seats, three seats were reserved for Scheduled Caste, Scheduled Tribe and Backward Class communities each and three seats for O.Cs. Under ‘B’ group, there were four seats, out of which, one seat was reserved for Scheduled Caste and one for Backward Class candidate and other two seats for O.C. group. According to the petitioner, there were sufficient voters under ‘A’ group, but under ‘B’ group there were only three voters available and four vacant seats have to be filled up by conducting elections. Petitioner came to know that there were two nominations filed for electing two Director posts, but the signatures of the petitioner were forged on one of the second member to both the applications, which the petitioner came to know after declaring the elections by the 2nd respondent, which is also one of the ground of challenge before the Election Tribunal. The 2nd respondent declared the election of respondents 3 to 8 as Board of Directors, but the same, according to the petitioner, is non- est in the eye of law since the 2nd respondent has not followed the procedure prescribed both under the Election Rules and the guidelines issued by the 9th respondent in circular Rc.No.31801/2005-Election Cell dated 1.10.2005. According to the petitioner, 2nd respondent conducting elections to the 10th respondent society on 18.11.2005 in illegal manner at the instance of local political leaders. Though there was ‘NO QORUM’ for conduct of such elections as per the provisions of the Rules and also as per the circular issued by 9th respondent, the 2nd respondent conducted election in hastily manner without cooption of nominated members. According to the petitioner, he had sent nomination of their candidates to fill up the post of one Director on cooption basis under Scheduled Caste category, but the 2nd respondent refused to receive the same at 8.45 a.m. and when it was sent by Fax, the same was received on 18.11.2005 at 10.39 p.m. The 2nd respondent ignored the same and went ahead with the conduct of cooption of two members nominated by the local political leaders though there were two more clear vacancies available to fill up the posts on cooption basis. Questioning the same, petitioner filed Election O.P. before the 1st respondent-Tribunal and the same was dismissed by order dated 28.8.2008. According to the petitioner, the 1st respondent-Tribunal dismissed the election O.P. without going into the merits and demerits and without examining the legal position. According to the learned counsel for petitioner there were only three eligible members as voters under ‘B’ category and there are four vacancies to be filled up by conducting elections. The respondents 7 and 8 have filed their nominations for the post of Directors to the 10th respondent managing committee. As per Rule 22(4)(b) of A.P. Cooperative Societies Rules, 1964 (for short ‘the Rules’), the nomination of candidate shall be filled with one proposer and one seconder whose names are included as valid voters in the voters list. Moreover, the person who proposes or who seconds is restricted to one candidate only. Admittedly, the person who seconded has signed for both 7th and 8th respondents and there was only proposer to 8th respondent and admittedly there was no seconder to 8th respondent. The 7th respondent being the contesting candidate, cannot sign as proposer to 8th respondent, which is also illegal as per the rules. But unfortunately the 1st respondent gave a finding that; “as there are three eligible voters in Group-B and in view of the above circumstances, the nomination filed by respondent No.7 cannot be treated as invalid as there is no possibility to file nomination with the signature of seconder because no seconder is available since two persons already filed nominations for contesting the elections out of three eligible voters from Group-B.” According to the learned counsel, this finding is quite contrary to Rule 22(4)(b) of the Rules. If there was no such seconder available, the said nomination should have been rejected by the 2nd respondent since the acceptance of such nominations of 7th and 8th respondents are quite contrary to the said rule. The entire election process conducted by the 2nd respondent is non-est in the eye of law. The continuation of such elected body amounts to continuing the illegally elected body in the office of the District Marketing Society. The learned counsel further contended that even at the time of conduct of office bearers elections on 18.11.2005, there was no quorum. As per bye-law No.23 of society byelaws, the minimum quorum required for conduct of meeting is (7) and even as per Rule 23 of the Rules, the minimum quorum is majority of total members of the society and in this case, the total members of the 10th respondent are (13) in total. Therefore as per Rule 22(12)(b) of Rules, the Election Officer shall postpone the conduct of election of office bearers of 10th respondent society in case of ‘no quorum’ for the next day and then proceed to conduct election to the office bearers, but the 2nd respondent has failed to follow this rule and therefore the entire election process was a mockery and the same is liable to be set aside. As per circular guidelines issued by the 9th respondent in his Rc.No.31801/2005-Election Cell dated 1.10.2005, the election of office bearers should be conducted after conduct of ‘cooption’ of the vacant seats to be filled up. A detailed counter affidavit has been filed by the respondents 3 to 5, 7 and 10 denying the allegations made by the petitioner. At paragraphs 4 and 5 of the said counter, it is stated that; “The further allegations in paragraph Nos.3(a) to (j) and ground Nos.(i) to (vi) that petitioner’s father was one of the eminent founder members of the cooperative movement in the state and he was a key person for establishment of cooperative societies in the State and that petitioner was elected as President of the petitioner society which is affiliated to the 10th respondent society as one of the members of the said society and that an election officer was appointed to conduct election to the managing committee of the 10th respondent society vide notification dated 13.11.2005 that there are sufficient voters under ‘A’ group, but under ‘B’ group i.e. petitioner group of societies, there are only 3 voters available and that there are 4 vacant seats that have to be filled up by conducting elections and that petitioner came to know that there were two nominations filed for electing two Director seats, but the petitioner signatures were forged on one of the second member to both the applications which petitioner came to know after declaring the elections by the 2nd respondent which is also one of the grounds now under challenge and that the conduct of elections by the 2nd respondent by declaring the election of respondents 3 to 8 as Board of Directors is illegal and non-est in the eye of law since 2nd respondent has not followed the procedure and election guidelines issued by the 9th respondent and that circular dated 1.10.2005 issued by the 9th respondent and that conducting the elections of the Board of Directors to the 10th respondent society by the 2nd respondent in illegal manner but also the 2nd respondent has fraudulently at the instance of local political leaders pressure, hastily conducted the election of office bearers of the 10th respondent society on 18.11.2005 i.e. on the date of fixing the elections for office bearers without conducting cooption of nominated members and that there was no quorum for conduct of such elections and that petitioner have sent nomination of their candidate to fill up the seat of one Director on cooption under Scheduled Caste category and that 2nd respondent refused to receive the same and that when it was sent by fax and the same was received by the 2nd respondent on 18.11.2005 at 10.39 p.m. and that 2nd respondent ignored the same and went ahead with the conduct of the cooption of two members nominated by the local political leaders though there were two more clear vacancies of seats available to fill up on cooption and that petitioner filed election O.P.No.39 of 2005 and also sought the stay of the declaration of elections pending disposal of the O.P. and that the Tribunal without going into the merits and demerits of the case simply dismissed the election O.P. etc., are all incorrect, untenable and created for the purpose of extraneous reasons. The allegations of petitioner that his signature was forged on one of the second member, is not true. The said fact was not mentioned either in chief affidavit or in the cross-examination of the respondents adduced before the Cooperative Tribunal, Vijayawada. The said forgery allegation is only after thought and for purpose of creating for filing this writ petition. The said allegations are brought in the Election Petition No.39/2005 on the file of the A.P. Cooperative Tribunal, Vijayawada and it is an after thought of the petitioner. If petitioner’s signature was forged, he would have filed a criminal complaint against the concerned. There is no justification that his signature was forged. The petitioner alleges that his forged signature was noticed after declaring the result of elections by the 2nd respondent. It is an after thought allegation. In this we submit before this Hon’ble Court if his signature was forged on the nomination form he would have pointed out the same at the time of scrutiny of nominations and before final list nominations published as per election program. He never pointed out the same at that time. Hence there is no prima facie evidence that his signature was forged. Hence his allegation is not correct.” Further, it is stated that the strength of the Board of Directors to be elected is (10) members, out of which (6) members have been elected from (4+2) A & B group. The quorum for conducting office bearer’s election is (6) members as per Section 32 clause (4) of A.P. Cooperative Societies Act, that is the majority of total members of the committee elected. It was further stated that the elected members of the society are competent to coopt for the unfilled vacancies and the cooption subject was unanimously postponed by the elected members. The respondents 7 and 8 have filed nominations to elect them as Directors of 10th respondent society in ‘B’ group. As per Rule 22(4)(b) of the Rules, the nomination of candidate shall be filled with one proposer and one seconder whose names are included in the voters list. The 8th respondent has proposed 7th respondent and the petitioner was seconder. The 7th respondent has proposed 8th respondent, but there was no seconder, in view of limited voters i.e. 3 nos. in B group. If the 8th respondent nomination is invalid by the Election officer, the entire election process will be dislocated and the election has to be postponed. If election is postponed, in view of expenditure on account of election postponement, the society would sustain heavy loss. The first respondent- Tribunal, has correctly observed the situation and also in view of the circumstances then prevailed, held that the nominations filed by the 8th respondent cannot be treated as invalid as there was no possibility to file nomination with the seconder, because no seconder was available since two persons already filed their nominations. It is not true to say that there was no quorum for election of office bearers held on 18.11.2005. As per Rule 23 of the Rules, the minimum quorum for conducting elections to the office bearers is majority of total members elected to the society. The total members of the society were ten, therefore six members were elected out of ten. The minimum quorum required was six members. Further, petitioner alleged that as per byelaw No.23 of the society, the quorum was seven. The said byelaw was not amended as per Act and Rules. The Act overrule by the byelaws. The Election Officer proceeded as per Act and the Rules, as such the election of office bearers cannot be set aside. The Election Officer conducted meeting with elected members on 18.11.2005 for cooption for the unfilled vacancies. The elected members unanimously postponed the cooption subject. The learned counsel appearing for respondents reiterated the same stand as was taken in the counter and stated that the 1st respondent-Tribunal has not committed any error calling for interference of this Court under Article 226 of the Constitution of India. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. Petitioner is the President of Farmers’ Rural Extension Service in Horticulture Growers and Consumers Coop. Marketing Society Ltd., Tenali, Guntur district, which is affiliated to 10th respondent society. Petitioner is also eligible member to participate in the election of Guntur District Cooperative Marketing Society Ltd., as approved and published by the 2nd respondent in O.C. category under Group ‘B’ of voters list. Respondents 3 to 6 are also eligible voters in Group ‘A’ of voters list representing Vemuru, Potlapadu, Reddypalem and Nagaram Primary Agricultural Cooperative Credit Societies respectively. Respondents 7 and 8 are the Presidents, representing Isukapalli Weavers’ Coop. Society Ltd., and Tenali Coop. Canteen Ltd., respectively who are also eligible voters in Group ‘B’ of the voters list published by the 2nd respondent under Rule 22(a)(1) item No.4. Respondent No.9 is the Chief Election Authority, who approved the election schedule for the 10th respondent society by his order No.31798/13/2005/Election Cell dated 8.11.2005 and authorized the 2nd respondent to conduct elections to the managing committee members and office bearers of the 10th respondent society. Accordingly, 2nd respondent issued election notification in Form No.1 under Rule 22(2)(b)(vi) of A.P. Cooperative Societies Rules, 1964 for constitution of a committee consisting of 10 members, which reads as under: Category Group-A Group-B Scheduled Castes 1 1 Scheduled Tribes 1 -- Backward classes 1 1 Others. 3 2 ---- ---- TOTAL 6 4 ---- ---- The total strength of the committee is (13) including three members to be nominated by the Registrar. The 2nd respondent has conducted elections to the 10th respondent society on 17.11.2005 as per schedule and declared respondents 3 to 6 as elected members of the committee from Group ‘A’ and respondents 7 and 8 from Group ‘B’. Thus, as against 10 members of the committee, only (6) members were elected leaving four vacancies i.e. two in Group ‘A’ and two in Group ‘B’. The second respondent has conducted meeting of the newly elected members of the committee on 18.11.2005 to fill up the unfilled vacancies of the committee to conduct elections to President and Vice President. The second respondent has not taken steps to fill up the unfilled vacancies, but resorted to only conducting elections of the office bearers and has declared respondents 3 and 4as President and Vice President of the 10th respondent society. As per the election schedule, (10) members have to be elected to the managing committee of 10th respondent society and nominations have to be proposed by one voter and seconder by another voter. Under Group ‘A’, respondents 3 to 6 have filed nominations. Under Group ‘B’ respondents 7 and 8 filed nominations. Admittedly, under ‘B’ group, there were only three eligible voters available as per the voters list. The nomination filed by 7th respondent was duly proposed by one voter and seconded by another voter and similarly, the nomination filed by 8th respondent was proposed by one voter and there was no seconder to his nomination because the eligible voters were only three. Rule 22(4)(b) of the Rules contemplate that every nomination shall be signed by one proposer and one seconder who shall be eligible members on the voters list and a member can either propose or second one candidate only. A rule must be construed strictly, but in this case, as practically it was impossible to secure another valid voter for the purpose of seconder to 8th respondent’s nomination, therefore, the Election Officer, in the facts and circumstances of the case, has taken a decision pragmatically validating the nomination of 8th respondent. The Tribunal also approved the same in the peculiar facts and circumstances of the case. Therefore, I am of the opinion that such a decision arrived at by the Election Officer, as confirmed by the Tribunal need not be disturbed. As per the election schedule, the President and Vice President have to be elected from among the elected members. Respondents 7 and 8 have been elected as members of the Managing Committee under ‘B’ group and in view of the above circumstances, the nomination filed by 8th respondent cannot be treated as invalid as there is no possibility to file nomination with the signature of seconder because no seconder is available since two persons already filed nominations for contesting the elections out of three eligible voters from Group ‘B’. The letter issued by the Commissioner for Cooperation and Registrar of Coop. Societies in Lr.No.36588/05/Election Cell dated 13.11.2005 was brought to the notice of the Tribunal, which reads as under: “That elected members only constitute the managing committee and out of which majority shall be for the first meeting for the election of the office bearers. The elected members shall meet at 8.00 a.m. on 18.11.2005 and coopt. the members for other unfilled vacancies and proceed from 9.00 a.m. for election of office bearers as per the procedure”. Thus, the Tribunal has rightly held that in view of the request of elected six members to postpone the cooption of unfilled vacancies, the Election Officer postponed the cooption of unfilled vacancies and conducted office bearers election to 10th respondent society since there was quorum from among elected committee members i.e. six members constitute quorum from out of the total strength