THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.810 of 2009 Date:01.03.2011 Between: A. Shanker and others ..... Petitioners AND The Deputy Registrar/Divisional Cooperative Officer, Golconda Division, Hyderabad and others .....Respondents Counsel for the Petitioners: Sri R.N.Hemendranath Reddy Counsel for Respondent No.1: Government Pleader for Cooperation Counsel for Respondent Nos.2 and 3: -- Counsel for Respondent Nos.4 to 11: Sri A.Tulasi Raj Gokul The Court made the following: ORDER: At the interlocutory stage the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. I have heard Sri R.N.Hemendranath Reddy, learned counsel for the petitioners, learned Government Pleader for Cooperation representing respondent No.1 and Sri A.Tulasi Raj Gokul, learned counsel for respondent Nos.4 to 11. The issue raised in this writ petition pertains to whether the person in charge committee constituted under Section 32(7)(a) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short ‘the Act’) has power or jurisdiction to conduct elections to the managing committee of respondent No.2 society. The undisputed facts are that by proceedings dated 19.04.2008 of respondent No.1, respondent Nos.4, 6, 9 and 11 were appointed as persons in charge to manage the affairs of respondent No.2 society. It is also not in dispute that the said committee purported to have held elections on 25.05.2008. The petitioners, who are members of respondent No.2 society, filed the present writ petition feeling aggrieved by holding of elections by the person in charge committee. At the hearing, Sri R.N.Hemendranath Reddy, learned counsel for the petitioners, placed reliance on the judgment of this Court in Bandaru Ramu vs. Secretary to Government, Housing Department[1] in support of his submission that the person in charge committee has no power and jurisdiction to hold elections and that any such elections held shall be void. The learned counsel for respondent Nos.4 to 11, however, submitted that as the petitioners have an alternative remedy of filing an election petition under Section 61(3) of the Act, the present writ petition is not maintainable. In support of his submission, the learned counsel placed reliance on the Division Bench judgment of this Court in A. Subbaiah vs. Assistant Commissioner of Excise, Nellore[2]. Dealing with the submission of the learned counsel for the petitioners on the power of person in charge committee to hold elections, it is appropriate to refer to the judgment of this Court in Bandaru Ramu (supra). The facts therein are almost similar to the facts of this case, where the person in charge committee has held elections, which were called in question by way of a writ petition. After considering the provisions of Sections 31 and 32 of the Act, this Court held as under: “11. It is clear from sub-section (2) of Section 31 that the term of the office of the managing committee shall be five years from the date of the election of the members of the committee. Clause (b) of Section 31(2) states that in respect of the society which received State aid as specified in Section 43 of the Act, it shall be the duty of the Registrar to hold elections to the office of the members of the society before the expiry of their term. So far as the other societies are concerned, Section 31(2)(c) provides that it shall be the responsibility of the incumbent committee of the society to hold elections to the office of the members of the committee in the manner specified in the bye-laws before the expiry of the term. 12. It is not in dispute that the society in question in the present case is not in receipt of any State aid as specified under Section 43 of the Act. Hence, as per Section 31(2)(c) of the Act, it shall be the responsibility of the incumbent committee to hold elections before the expiry of the term. 13. The expression ‘incumbent committee’ itself refers to an elected committee whose term is going to expire shortly. Since admittedly in the case on hand, the term of the elected committee expired on 9-10-2001 itself and thereafter the elected committee headed by the 5th respondent as President was only continuing as a person-in-charge committee, undoubtedly the said committee cannot be treated as an incumbent committee so as to fall under Section 31(2) (c) of the Act. 14. Though under clause (b) of sub-section (7) of Section 32 of the Act the persons appointed as persons-in- charge committee are entitled to exercise all or any of the functions of the committee and to take all such actions as may be required in the interest of the society subject to such instructions or directions as may be issued by the Government or the Registrar from time to time, such powers do not include the power to hold elections since under Section 31(2)(c) of the Act such power was expressly conferred only on the incumbent committee of the society. 15. For proper appreciation, Section 32(7) of the Act maybe extracted hereunder: “32(7)(a)(i): If there is no committee or in the opinion of the Government or, the Registrar, it is not possible to call a general 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 a person or persons 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 the Government, 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. (ii) Notwithstanding anything contained in this Act, in the special circumstances and for the reasons to be recorded, if in the opinion of the Government, it is not possible to hold the elections to the societies or class of societies, the Government may by order extend the term of the person or the persons appointed to manage the affairs of the society or class of societies beyond three years but not exceeding five years in aggregate. (b) .. (c) .. (d) The Registrar may at any time, and shall at the expiration of the period of appointment of person or persons so appointed, arrange for calling of a general meeting for the election of a new committee in such manner as may be prescribed. The person or persons so appointed shall cease to manage the affairs of the society on the new committee entering upon its office.” 16. On a combined reading of Sec.31(2)(c) and Section 32(7)(b) of the Act, particularly Section 32(7) which clearly provides that the Registrar shall at the expiration of period of the persons appointed as persons-in-charge committee arrange for calling of a general meeting for the election of a new committee in such manner as may be prescribed, I am of the opinion that even if the erstwhile committee which was being continued as person-in-charge committee held elections on 9-9-2002, the same are void being contrary to law.” Having thus held that the elections held by the person in charge committee were void, this Court directed the Registrar to arrange for calling of a general meeting for holding of elections of new committee, following the procedure prescribed under the rules. As the ratio laid down in the afore-noted judgment applies on all fours to this case, there is no option to this Court other than holding that the elections held by the person in charge committee as void. As regards the submission of the learned counsel for respondent Nos.4 to 11 that the writ petition filed without filing an election petition under Section 61(3) of the Act is not maintainable, it is no doubt true that ordinarily when an effective alternative remedy is available, this Court seldom entertains writ petitions. It shall, however, be noted that the doctrine of alternative remedy is not a rule of law, but essentially a rule of procedure, which is evolved by the constitutional Courts with a view to ensure that the aggrieved persons, who have an effective remedy, shall not be allowed to knock at the doors of the superior Courts ignoring the alternative remedies in the first instance. The Apex Court by a catena of judgments has however carved out several exceptions to this rule. (See Whirlpool Corporation vs. Registrar of Trade Marks[3] and Harbans Lal Sahnia vs. Indian Oil Corporation Limited[4]). Where the action complained of is patently without jurisdiction or per se illegal and mala fide, this Court entertains the writ petitions notwithstanding the fact that an alternative remedy is available to the aggrieved person. In a writ petition filed bypassing the remedy of election petition and challenging an election to a Cooperative Society, a Division Bench of this Court in B. Rajagopala Rao vs. Registrar of Cooperative Societies[5] held as under: “29. The iron hand of law must necessarily make itself felt and writ of justice must call upon the statutory authorities to do their statutory duty and conduct the election according to law wholly ignoring the arbitrary and unauthorised acts of a section of the society. It is no doubt true that section 61(2) of the Act is wide in its amplitude to cover disputes of all kinds having reference or relation to the business or affairs of the society. It takes election matter into its fold. But when the election was not held in accordance with law but in utter disregard of it in a highhanded manner paralysing the smooth working of lawful process and scaring away the statutory authority and even trying to put him out of possession, we think writ jurisdiction is the most appropriate and effective and speedy remedy and section 61(2) cannot displace the same. As already observed the jurisdiction of this court to issue appropriate writs is undoubted and it is only a matter of discretion whether a certain writ should, on the circumstances, be refused or not. The circumstances of the case, in our opinion, do warrant issuance of a writ of mandamus. As already observed, even though the office be full if the election is clearly void or colourable a writ of mandamus will issue. Further the power under the article extends to issuance of directions and orders. The Registrar, for due performance of his duties must be directed to take possession of the records and other paraphernalia from Sri B. Raja Gopal Rao and others. Thus what all justice demands in all these petitions is fully met by the office of writ of mandamus we therefore do not propose to go into the much- debated question of public office. That brings us to the end of the matter.” In view of the above, I do not find merit in the submission of the learned counsel for respondent Nos.4 to 11 that the writ petition is liable to be thrown out on the ground of alternative remedy. For the aforementioned reasons, the Writ Petition is allowed by holding that the elections held to respondent No.2 society are void. Respondent No.1 is directed to call a general meeting within a period of one month from the date of receipt of a copy of this order and take steps for holding election to the managing committee of respondent No.2 society by strictly following procedure prescribed under Rule 22 of the Andhra Pradesh Cooperative Societies Rules, 1964. As a sequel to disposal of the writ petition, interim order dated 22.01.2009 in W.P.M.P.No.1019of 2009 is vacated and W.P.M.P.No.1019 of 2009 and W.V.M.P.No.2348 of 2010 are disposed of as infructuous. ________________________ C.V.NAGARJUNA REDDY, J 01st March, 2011 GHN [1] 2006(3) ALT 314 [2] 1996(2) ALD 789 (D.B.) [3] 1998(8) SCC 1 [4] 2003(2) SCC 107 [5] 1967(2) AWR 26