IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTEETH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION Nos.8427 & 9666 of 2008 AND 239 of 2009 W.P.No.8427 of 2008: Between: Golivada Latchaiah, S/o. Lingaiah and others ..... PETITIONERS AND The District Collector – cum – Election Authority, Adilabad District, Adilabad and others ....RESPONDENTS W.P.No.9666 of 2008: Between: Shakapuram Bhhemsen, S/o.Rajam ..... PETITIONER AND The District Collector – cum – Election Authority, Adilabad District, Adilabad and others ....RESPONDENTS W.P.No.239 of 2009: Between: Shakapuram Bheemsen, S/o. Rajam ..... PETITIONER AND The District Collector – cum – Election Authority, Adilabad District, Adilabad and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION Nos.8427 & 9666 of 2008 AND WRIT PETITION No.239 of 2009 COMMON ORDER: These writ petitions are being disposed of by a common order in view of the commonality of questions involved in these writ petitions. 2. Writ Petition No.8427 of 2008 is filed by the writ petitioners, Golivada Lactchaiah and others, praying for a writ of mandamus declaring the order of the District Collector – cum – Election Authority in his proceedings vide Rc.No.480/D/2007, dated 24.11.2007 as bad, arbitrary and contrary to Andhra Pradesh Cooperative Societies Rules, 1964 (for short, ‘the Rules’) made under the Act and pass such other suitable orders. 3. The said order dated 24.11.2007 reads as hereunder: “The elections to the Managing Committee of the Fishermen Coop. Society, Mancherial of Adilabad District scheduled to be held on 26.11.2007 are hereby postponed till further orders.” 4. Writ Petition No.9666 of 2008 is filed by Sri Shakapuram Bheemsen, the writ petitioner, praying for a writ of mandamus declaring the order of the Commissioner of Fisheries, Andhra Pradesh, Hyderabad, vide Memo No.10941/11/2007, dated .01.2008 as bad, arbitrary and contrary to the provisions of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, ‘the Act’) and bye-laws made thereunder and pass such other suitable orders. 5. The said Memo No.10941/11/2007 reads as hereunder: “The attention of the Assistant Director of Fisheries Adilabad is drawn to the reference 1st & 3rd cited. The matter has been examined and the following orders are issued to the Assistant Director of Fisheries Adilabad in view of the prevailing dispute between groups of members in the FCS, Manchiryal, Adilabad. 1. The Official Person Incharge will be continued to a further period until the dispute is settled and all the members come to an understanding to run the society as per Coop Movement and do not maintain any group politics. 2. The Assistant Director of Fisheries is directed to initiate action to identify the eligible fishermen members in the jurisdiction villages to be admitted as members subject to the eligibility i.e., 78(as per norms). 3. Conduct skill test as per procedure to all those identified and prioritize the qualified members to be admitted in the presence of Assistant Registrar (Coop) to arrive at the validity in terms of the Act and Rules. (Orders of the Commissioner of Fisheries have been obtained in prescribed manner). Sd/- M.Ram Gopal Rao For Commissioner of Fisheries” 6. No interim orders had been granted in these writ petitions. 7. Sri Shakapuram Bheemsen filed Writ Petition No.239 of 2009 praying for a writ of mandamus declaring the action of the respondents in conduct of the ensuing elections of Fishermen Co-operative Society, Mancherial, Adilabad District, with new voters list published by respondent No.3 dated 03.01.2009 ignoring the voters list published by the Election Officer on 15.11.2007 under the Election Notification vide Proceedings Rc.No.480/D/2007, dated 18.10.2007 as bad, arbitrary and contrary to the provisions of the Act and the Rules made thereunder and pass such other suitable orders. 8. Respondent Nos.5 and 6 were impleaded as per the order made by this Court in W.P.MP.No.3834 of 2009 in W.P.No.239 of 2009. This Court issued Rule Nisi on 09.01.2009 and in W.P.MP. No.253 of 2009 in W.P.No.239 of 2009 made the following order: “The petitioner is a member of the 4th respondent – fishermen cooperative society and worked as the President of the Society up to the expiry of his term on 26.11.2007. The 1st respondent – Election Authority issued election notification dated 18.10.2007 in exercise of the powers under Rule 22-B of the Andhra Pradesh Cooperative Societies Rules, 1964 (for short, ‘the Rules’) appointing an election officer to conduct elections on 26.11.2007, but the election process has been postponed by the 1st respondent himself vide proceedings in Rc.No.480/D/2007, dated 24-11-2007 till further orders. It is stated that the 1st respondent has not passed any orders thereafter for conducting the elections. Learned counsel appearing for the petitioner submits that whenever elections are being postponed under Rule 22-C(1)(b), the election process shall recommence from the stage at which it was obstructed or interrupted. It is also stated that the elections were not obstructed or interrupted by the members or any other person but they were postponed by the Election Authority itself and the reasons for postponement are not known. Though the elections were conducive but there was no justification for postponement of the elections. However, as the elections are postponed, it shall recommence from the stage of its postponement. It is stated that as per the previous election notification dated 18.10.2007, the total number of members on the electoral roll were 75 members and the said voters list of the 4th respondent – society (Regd.No.S-38) signed by the President and the Election Officer on 15.11.2007 is also filed herewith. But, it is stated that the elections are proposed to be conducted afresh without reference to the earlier voters list and the 3rd respondent who is managing the affairs of the Society has no right to publish any voters list but he has prepared a fresh voters list with 49 members only calling for the objections, if any, to be filed before 11:30 AM on 06.01.2009. It is the case of the petitioner that with that 49 members only, the respondents are contemplating to conduct the elections. Having regard to the facts and circumstances of the case, it is directed that if the respondents are inclined to conduct the elections, they shall conduct the elections with the earlier voters list dated 15.11.2007 with 75 members separately and with the present voters list of 49 members separately, but the results shall not be declared until further orders.” 9. In W.P.No.239 of 2009 counter affidavits had been filed along with vacate applications. 10. M/s. M. Vidyavathi, learned counsel representing the writ petitioners in these writ petitions, had taken this Court through the relevant provisions of the Act and also the Rules framed thereunder and would maintain that when once an election process had commenced the same is to be taken to its logical end and even if the contesting respondents are aggrieved, their remedy is to challenge the same in accordance with law. The learned counsel also pointed out that in the light of the facts and circumstances, since the results of the elections had not been declared, such results are to be duly declared giving opportunity to such aggrieved parties to agitate their rights, if any, in accordance with the provisions of the Act and Rules framed thereunder. The learned counsel placed strong reliance on Rule 22-C of the Act and Rules and also relied on the decision of the Division Bench in M.A.R.V.S.Sai Babu v. Commissioner and Registrar of Co.op. Societies, Govt. of A.P., Hyderabad and others[1]. 11. The learned Assistant Government Pleader for Fisheries had taken this Court through the stand taken in the counter affidavit and also had pointed out that the voters list along with the material papers being the correct voters list, the stand taken in the counter affidavit of respondent No.2 to be affirmed. 12. Sri D. Goverdhanachary, learned counsel representing respondent Nos.5 and 6 had taken this Court through the counter affidavit filed by the said parties and would maintain that when the admission of the members had not been made in accordance with law they cannot be said to be voters and on the strength of such voters list the elections cannot be proceeded with. The learned counsel also would maintain that though alternative remedy is available, it cannot be said that the declaration of results have to be made in relation to such election, wherein the 75 members had participated. 13. The learned Assistant Government Pleader for Fisheries had produced the records before this Court. This Court had thoroughly gone through the records as well. The reliefs prayed for in W.P.No.8427 of 2008 and in W.P.No.9666 of 2008 need not be dealt with in elaboration for the reason that no interim orders as such had been made in the said writ petitions and further in the light of W.P.No.239 of 2009, the averments made in the affidavits filed in support of the writ petition need to be considered in elaboration. However, the orders, which had been challenged, had already been specified supra. In W.P.No.239 of 2009 the relief prayed for had also been referred to above and the interim order granted by this Court had also been specified supra. 14. It is the case of the petitioner that the Fishermen Co-operative Society, Mancherial, Adilabad District was registered in the year 1980 under the Act. The society was in existence with 75 members, having three tanks as areas of operation of the society. The term of the Managing Committee of the Society was ended by 26.11.2007. The District Collector – cum – Election Authority issued the Election Notification by exercising the power under Rule 22-B of the Rules in his proceedings vide Rc.No.480/D/2007, dated 18.10.2007 appointing an election officer to conduct elections to the society on 26.11.2007 along with election schedule. 15. Pursuant to the above notification while the Election Officer issued election notice on 15.11.2007 along with voters list, respondent No.1 issued an order in his proceedings vide Rc.No.480/D/2007, dated 24.11.2007 postponing the elections of the Managing Committee of Fishermen Cooperative Society, Mancherial scheduled to the held on 26.11.2007 till further orders. Whereas, in this case election authority had postponed the election indefinitely without assigning any reasons. Moreover, the Election Officer had published the voters list with 75 members. Thus, it is clear that the Society is existing with 75 members as there is no dispute regarding membership. 16. While the matter stood thus, on the peoples complaint, the District Collector, Adilabad, referred the matter to the District Co-operative Officer/Joint Registrar of Co-operative Societies, Adilabad, to conduct an enquiry on the early conduct of elections, inducting of new members and irregularities taken place in the society in his proceedings vide Rc.No.2314 of 2008, dated 06.09.2008. There upon the Joint Registrar/District Co-operative Officer, Adilabad, had conducted an enquiry on 22.09.2008. After summoning the complainant, Person Incharge Committee of the Society and after perusal of the records submitted a report to the District Collector while recommending for conduct of elections without any delay for safeguarding the Co- operative norms. Further, it was also observed in the report that present Person Incharge Committee is not having proper knowledge for running the society. Hence the Enquiry Officer had finally recommended that the elections should be conducted without any delay duly considering the (75) members list as per the admission registered in the society record. It is thus manifest that the process of elections will be recommended from the stage where it was obstructed or postponed as per Rule 22-C of the Rules. As per the election Notification issued by respondent No.1 in his proceeding vide Rc.No.480/D/2007, dated 18.10.2007, the elections are scheduled to be conducted on 26.11.2007. After completing all the steps as per the election schedule under Rule 22-B of the Rules published along with the election notification, the District Collector had simply postponed the election by its order vide Rc.No.480/D/07, dated 24.11.2007. By the time of postponement of Election, preparation of list of eligible members on compliance of all the steps as per the schedule was completed. On 15.11.2007 the Election Officer had published the voters list with (75) members. Thus, the election process will be recommended from stage where it was stayed, which means the Election Officer in turn have to issue notice only to conduct elections by receiving nominations and other consequential steps. Except that the Election Officer and Person Incharge Committee, who represent the society, have no power to change the voters list as they desire and the same is nothing but, ignoring the published voters list dated 15.11.2007 and also the report of the Enquiry Officer where (25) disputed members declared as eligible is bad and contrary to the Act and the Rules therein. The petitioner came to know that respondent No.1 will issue Election Notification/Notice for conduct of elections to Fishermen Co-operative Society, Mancherial on 09.01.2009. Before issuing such notice the Person Incharge Committee of Fishermen Co-operative Society, Mancherial published the voters list with 49 members inviting objections by 06.01.2009. Infact as stated supra the said stage had already been over and the question of publication of voters list does not arise to Person Incharge Committee. Moreover he must do anything with reference to the society only as per the society record. Though the law does not permit for enquiry on the issue of membership/voters list, the Enquiry Officer had conducted an enquiry and in it he recommended for early elections to the society with 75 members. To our sudden surprise the Person Incharge Committee is nothing to do for elections, at this stage, published the voters list with 49 members inviting the objections by 06.01.2009 is bad, contrary to the provisions of the Act and the Rules made thereunder, apart form the judgments rendered by this Court. Unless the Court interferes and suspend the voters list published by respondent No.3, the members of the society will be put to great hardship. There is urgency in this case that respondent No.1 will issue an election notification/notice on 09.01.2009 by fixing 16.02.2009 for date of poll and declaration of the result. Thus, in such circumstances the writ petitioner approached this Court praying for the reliefs specified supra. 17. In the counter affidavit filed by respondent No.2 it is stated that the Fishermen Cooperative Society, Mancherial is registered in the year 1980 with 100 members at the time of Registration. Out of 100 members 51 members were expired. But the petitioner said that the Fishermen Co-operative Society, Mancherial is existing with 75 members. But the said stand is not correct. The term of the Managing Committee of the Society was ended by 26.11.2007. The District Collector – cum – Election Authority issued the Election Notification by exercising the power under Rule 22-B of the Rules vide this office Proceedings No.480/D/07, dated 18.10.2007 appointing an Election Officer to conduct elections to the Society on 26.11.2007 along with election schedule. 18. Further it is stated that the president included some non- members in to their society without the permission of the Ex-Officio Deputy Registrar of Co-operative Society and the same is quite irregular and the same was informed to the Election Officer vide this Office Lr.No.480/D/2007, dated 15.11.2007 and requested to conduct elections to the Managing Committee of Fishermen Co-operative Society, Mancherial with 49 existing members. The society President had given the voter list to the Election Officer with 75 members including non-members in the society and due to this reason the District Election Authority had postponed the Elections. 19. It is further stated that the District Collector and Election Authority, Adilabad had appointed District Co-operative Officer/Joint Register of Co-operative Societies to conduct the enquiry regarding membership dispute. The enquiry officer submitted a detailed report and opined that the Elections to the Fishermen Co-operative Society, Macherial must be conducted without much delay for safeguarding the Co-operative norms. It was further opined that the elections to be conducted with 75 members. It is stated that if any new member wants admission/expulsion or deletion in the society the General Body has to pass a resolution recommending to the Ex-Officio Deputy Register of Cooperative Societies for expulsions or deletions or admissions. Accordingly, the skill test committee had been conducting skill test to the applicants and qualified members had to be enrolled as per the Circular Order of the Commissioner of Fisheries, Andhra Pradesh, Hyderabad, vide Lr.No.182/I/14/1997, dated 16.10.1998. 20. Thus, it is stated that the District Collector/Election Authority had appointed Election Officer to conduct the elections to the Managing Committee of Fishermen Co-operative Society, Mancherial with 49 members as per the registration and 75 includes non-members separately, as per the directions of this Court. 21. In the reply affidavit filed to the counter filed by respondent No.2, certain further facts had been narrated. No doubt strong reliance was placed on the decision of the Division bench specified supra wherein the Division Bench held thus: “There is nothing arbitrary in conferring the power either to the Government or the District Collector to exercise the power to postpone the elections. Conferment of such power is not arbitrary. 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 be judged 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, the High Court can quash the said action and bring order into the process. 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 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. 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 stated 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 canceling 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.” 22. Inasmuch as no interim orders had been granted in W.P.Nos.8427 and 9666 of 2008, no further orders need to be passed and accordingly these writ petitions are hereby closed. 23. As far as W.P.No.239 of 2009 is concerned, by making interim order on 09.01.2009 this Court recorded certain reasons. But ultimately this Court observed that having regard to the facts and circumstances of the case, it is directed that if the respondents are inclined to conduct the elections, they shall conduct elections with the earlier voters list dated 15.11.2007 with 75 members separately and with the present voters list of 49 members separately, but the results would not be declared until further orders. As can be seen from the stand taken in the counter affidavit certain non-members had also been included and those members had not been admitted as per the procedure. The conduct of Election should be based on a valid voters list prepared in accordance with law. 24. In the light of the stand taken in the counter affidavit of respondent No.2, this Court is of the considered opinion that the results of the Elections to be declared in relation to the Election conducted with 49 members only, in pursuance of the interim order made by this Court. 25. Accordingly, with the said direction W.P.No.239 of 2009 is being disposed of. Parties to bear their own costs. ___________________ P.S. NARAYANA, J November 20, 2009 MD [1] 1999 (2) ALD 319 (DB)