*THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND THE HON’BLE SRI JUSTICE R. KANTHA RAO + W.A NO. 1267 OF 2008 % Dated 29.10.2008 # The Gudivada Cooperative Urban Bank Ltd …appellant Vs Smt Sheik Mahaboobi and ors Respondents <GIST >HEAD NOTE: ! Counsel for the Writ Appellant: MR.K.CHIDAMBARAM ^Counsel for the respondents: GP FOR COOPERATION ? Cases referred 1.AIR 1994 DELHI 69 2. AIR 1980 SC 1612 3. (1996) 3 SCC 416 4. (1985)4 SCC 689 5. 1995 SUPPLEMENT (2) SCC 305 6. (1967) 1 SCR 400 7. AIR 2001 (SC) 3982 8.(2004) 1 SCC 136 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT APPEAL NO : 1267 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 26/09/2008 in WP NO : 20672 OF 2008 on the file of the High Court.) Between: The Gudivada Cooperative Urban Bank Limited Regd. No. 1482, Gudivada, Krishna District, Rep. by its Chief Executive Officer. ..... APPELLANT AND 1 Smt. Sheik Mahaboobi W/o. Amir Basha R/o. Karmiknagar, Gudivada, Krishna District. 2 Goripatarthi Visweswara Rao S/o. Veerraju R/o.H.No. 14/332, Opp,. Sub Registrar Office, Gudivada, Krishna District. 3 Vari Chenna Keshava Rao S/o. Varri Pothuraju R/o. H.No. 14/791, Railway Station Road, Gudivada, Krishna District. 4 Adapa Nageswara Rao S/o. Ramanujayya R/o. Peda Erukapadu, 18th Ward, Gudivada, Krishna District. 5 Allada Rama Rao S/o. Ranga Rao R/o. 13/113-c Patimeeda, Gudivada, Krishna District. 6 Yalavarthi Venkateswaramma W/o. Koteswara Rao R/o. 8/70, 8th Ward, Gudivada, Krishna District. 7 Gokarakonda Arjuna Rao S/o. Venkateswara Raoa Medarla Bazar, Gudivada, Krishna District 8 Sirigiri Harinathbabu S/o. Someswara Rao R/o. Near Ganganamma Temple, Gudivada, Krishna District,. 9 Boyina Rama Rao S/o. Panduranga Rao R/o. 19th Ward, Bethavolu, Gudivada, Krishna District,. 10 Puppala Rajya Lakshmi W/o. Rama Krishna R/o. 11/229, Gudivada, Krishna District,. 11 The Registrar of Cooperative Societies, Nampally, Hyderabad. 12 The District Collector, Machilipatnam, Krishna District 13 The Election Officer Cum Divisional Cooperative Officer, Gudivada, Krishna District. 14 Sri Boppana Bapineedu Prasad S/o. Herneedu Urban Bank Limited, R/o. 14th Ward, Jagannathapuram, Gudivada. .....RESPONDENT(S) Counsel for the Appellant:MR.K.CHIDAMBARAM Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : THE HON’BLE SRI JUTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WA.No.1267 of 2008 JUDGMENT: (Per Hon’ble Sri Justice B.Prakash Rao) Heard Sri Vedula Venkata Ramana, the learned senior counsel appearing on behalf of the appellant and Sri S.Ramachandra Rao, the learned senior counsel appearing on behalf of the contesting respondents 1 to 10 herein and the learned Government Pleader for Cooperation. The appellant is a Cooperative Urban Bank, the respondent No.4 in a writ petition ﬁled by the respondents 1 to 10 herein where they sought for a Mandamus declaring the action of the appellant and other respondents in presenting the voters list dated 8-9-2008, which was released to contesting candidates and made public on 19-8-2008 i.e. after the date of withdrawals, by deleting more than 7000 votes including the votes of the respondents 2 to 10 out of 12000 votes, without calling for objections and without issuing any notice and conducting elections to the appellant bank as illegal and violative of Article 14 and 19 (1) (c ) of the Constitution of India apart from violative of principles of natural justice and contrary to the provisions of the A.P. Cooperative Societies Act 1964 and the Rules made thereunder and consequentially sought to set aside the said voters list dated 8-9-2008 with a further direction to prepare the fresh voters list, in accordance with law. In the aﬃdavit ﬁled in support of the writ petition, it was stated that the appellant bank was established in the year 1915 and is having more than 12000 members. The earlier elections were conducted on 31-08-2000, the term of which expired on 30-8-2005. The respondents 1 to 10, the writ petitioners were on the rolls and shown in the voters list all along. Therefore, with the intervention of an interim arrangement in between as contemplated under law, with a view to conduct elections on 28-9-2008, according to the petitioners, the voters list dated 8-9-2008 was communicated later where under about 7000 eligible members from the voters list out of 12000 voters were deleted without any notice or without following due procedure as contemplated under the law. The case of the writ petitioners was that there is absolutely no justiﬁcation for such an action and therefore the entire voters list dated 8-9-2008 is totally illegal and cannot be proceeded with for the purpose of conducting elections based thereon, hence the writ petition. Pending the writ petition, the writ petitioners sought interim directions to stay all further proceedings in pursuance of preparation of voters list dated 8-9-2008. Initially, at the stage of admission, the learned Single Judge, as per the orders dated 23-9-2008 while ordering notice before admission, passed the interim orders to the following effect: “This Court is aware of the limitations, in the matter of interference with the election process. This case, however, presents several extraordinary features. The strength of the voters as on the date of last election is said to be aroung 12,000 and the voters’ list ha been slashed down to 5,063. The petitioners furnished the list of 17 dead persons, who were included in the voters’ list as a sample. A person, by name Kota Padmanabha, is said to have died, but he was included in the voters’ list, by showing his age as 112 years. Several such instances are noticed. The petitioners state that inspite of their best eﬀorts, they could procure the voters’ list, only on 19-9- 2008, by which time, the last date for ﬁling nominations had expired. These and other aspects need to be examined. There shall be interim stay, as prayed for, to be in force, for a period of four (4) weeks.” Later, the appellant herein as the respondent No.4 ﬁled a counter aﬃdavit and sought for vacating the said order. After hearing both sides, the learned Single Judge, on an application ﬁled by the appellant herein in WVMP.No.3036/2008 seeking for vacating the said order, passed the interim orders dated 26-9-2008 making interim orders as absolute with further directions. For convenience sake, the entire order is being extracted hereunder: “This Court passed an interim order on 23-09-2008 directing stay of election for a period of four weeks. Certain reasons were also mentioned. 4th respondent society ﬁled counter aﬃdavit and an application to vacate the said interim stay. Several grounds are urged by the petitioners in their challenge to the proposed election. Sri K.Chidambaram, learned counsel for the 4th respondent has pressed for vacating the interim order. Heard Sri S. Ramachander Rao, learned Senior Counsel for the writ petitioners and Sri K.Chidambaram, learned counsel for the 4th respondent. It is not in dispute that the membership number of the 4th respondent society is 14048. In the recent voters’ list, the names of 5063 members are mentioned. Even, this comprises about 40 names of the persons, who are said to be no more. The reason mentioned by the 4th respondent for such slashing of the voters’ list to almost 1/3rd of the membership is that majority of the members did not replenish or make good the deﬁcit of the share capital. It is stated that the share capital, which was initially at Rs.25/- was enhanced to Rs.300/- by the amendment of Rule 18 of the Andhra Pradesh Cooperative Societies Rules (for short ‘the Rules’) in the year 2002 and subsequently, members did not make good the deficiency. In several matters in which similar questions arose, this Court directed that before a member is disqualiﬁed from being a voter on the ground of insuﬃciency of share capital, the society must publish a notice requiring the members to make good the deﬁciency. Such a step, admittedly, was not to taken in this case by the 4th respondent. It has already been pointed out in the interim order that this court is aware of the limitations, in the context of interfering with the election matters. Learned counsel for the 4th respondent has placed reliance upon the judgment of the Supreme Court in SHRI SADGURU JANARDAN SWAMI 9MOINGIRI MAHARAJ0 SAHAKARI DUGDHA UTPADAK SANSTHA v. STATE OF MAHARASHTRAA.1. AIR 2001 SUPREME COURT 3982. Prima facie, this court is of the view that the facts of the said case are different from the case on hand. Further, it is relevant to refer to the judgment of the Supreme Court in BAR COUNCIL OF DELHI. v. SURJEET SINGH.2. AIR 1980 SC 112. It was held by the Supreme Court that the High Court can interfere in the election, if the Tribunal was not competent to deal with any particular aspect. Certain other aspects, such as, the conformity of the election notiﬁcation with the provisions of the Cooperative Societies Act and the Rules, the competence of the Election Oﬃcer etc., need to be dealt with after respondent Nos. 1 to 3 ﬁle counter aﬃdavits. Therefore, this Court is not inclined to vacate the interim order. The question of modifying it or making it absolute would be considered after respondent Nos.1 to 3 ﬁle their counter- affidavits. The allegation of the 4th respondent that one of the writ petitioners is no more and another has disowned the participation in the writ petition needs to be considered at a later stage. This order, however, does not preclude the 4th respondent from publishing the notice requiring its members to remit the balance to make good the deﬁciency of the share capital and to prepare fresh voters’ list and to proceed with the election.” Assailing the same, the appellant sought to attack the orders, ﬁrstly on the ground that when admittedly election process has commenced, this Court would not venture to exercise the powers under Article 226 of the Constitution of India to interdict the same and grant any interim directions or stay of whatsoever nature as well established by the various decisions of this Court and apex Court. Hence, it was submitted that the very staying of the proceedings in the processing of elections, is liable to be set aside. That apart, it was also contended that the further direction, which has been given to the eﬀect directing the appellant herein from publishing the notice requiring its members to remit the balance to make good the deﬁciency of the share capital and to prepare fresh voters list and to proceed with the election is again a superﬂuous one and goes beyond the scope of the writ petition. On behalf of the respondents 1 to 10, the writ petitioners, it was contended that when admittedly the voters list was published on 19-9-2008 when the entire nomination process was over, and further having regard to the fact that there is a change in regard to the enhancement of the share capital from Rs.25/- to Rs.300/- without there being any amendment to the bye-law and hence the entire voters list is vitiated, especially, due to deletion of such en masse voters. Further, it is also contended that the general principles under election law as applicable in regard to other elections would not have any application to the elections under the Cooperative Societies. It was also pointed out that subsequent to the orders under appeal, the Collector has already written a letter on 1-10-2008 for taking the follow up action and the same is in process and under Rule 22 (c) of the Rules made thereunder, the Collector can as well ﬁx the next date of election after ﬁnalizing the same. Further, the present CEO has already resigned on 17-10-2008, and therefore there is absolutely no warrant for any interference since the order is very justiﬁed in the facts and circumstances. After hearing the learned counsel on either side and on perusal of the material on record, the point which arise for consideration is as to whether on the facts and circumstances, this Court while exercising the powers under Article 226 of the Constitution of India can interdict the election process and grant any stay or direction as an interim measure? For proper appreciation of the facts in the present case, though these proceedings arise at the interlocutory, having regard to the larger question involved, we deem it appropriate to go into such basic aspect. Admittedly, we need not touch upon earlier checkered events of the elections as pointed out. For the purpose of conducting election, the Election Oﬃcer was pointed and election notiﬁcation was issued on 18-8-2008 whereupon the Election Oﬃcer made a requisition on 22-8-2008 for production of the record. Thereupon, on 27-8-2008, the Chief Executive Oﬃcer gave a notice inviting objections for ﬁnalisation of voters list, and thereafter the ﬁnal voters list was handed over on 3-9-2008. This was followed up by issuance of election notice in Form No.1 and publication of ﬁnal voters list by the election oﬃcer on 8-9-2008. As per the schedule prescribed thereunder, for the purpose of receipt of nomination, it was ﬁxed as 16-9- 2008 followed by scrutiny of nomination on 17-9-2008 and withdrawal of the nomination on 18-9-2008. Elections were scheduled to be held on 28-9-2008 and the counting was to be done on the same day followed by declaration of results. Therefore, in this case, admittedly the election process was already on by issuing notiﬁcation and also after preparation of the voters list. Under Chapter VIII of the A.P. Cooperative Societies Act, 1964, Section 61 (3) contemplates that all such disputes in regard to the election to a committee are to be referred for decision to the Tribunal. Therefore, the remedy for challenging such election is contemplated under the aforesaid provision. At the outset, it is submitted from both sides that there is no serious dispute in regard to the well established principle that once the election process commenced, this Court should not interfere or interdict nor grant any interim measure of stay or directions against such elections in exercise of its powers under Article 226 of the Constitution of India. However, the submissions made on behalf of the respondents 1 to 10, the writ petitioners is to the eﬀect that those general principles applicable to other elections would not have any application to the elections to Cooperative Societies since they totally stand on a diﬀerent footing. In support reliance was placed by the learned senior counsel on a decision in A.S.GAHLOUT VS. LIEUTENANT GOVERNOR, DELHI[1]. In the said decision, a Full Bench of the Delhi High Court while considering the provisions of Section 31 (7) of the Delhi Cooperative Societies Act, 1972 and the Representation of Peoples Act 1951, held that the said Cooperative Societies Act is totally a diﬀerent and independent legislation than the Representation of Peoples Act. It was a case where in respect of an election to the Board of Directors, which was conducted and subsequent to the declaration of the results and the same being challenged, which was set aside, and in a later proceedings as a consequent thereto, when a plea was sought to be raised that no material particulars were furnished in the election petition and only a roving and ﬁshing enquiry was conducted, the High Court has held that such pleas are not permissible having regard to the provisions of the Cooperative Societies Act. Therefore, the said decision cannot have any application to the facts of this case where the interdiction is more at the inception stage before the elections are being held and further the plea as sought to be raised is totally on a diﬀerent footing than the one which sought to be projected in this writ petition. I n BAR COUNCIL OF DELHI Vs. SURJEET SINGH[2] considering the election to the Bar Council under the Advocates Act, 1961, it was held that the illegal preparation of the electoral roll by the Delhi Bar Council on the basis of an invalid rule provided under Rule 3 (j) goes to the very root of the matter and no election held on the basis of such inﬁrmity can be upheld. Therefore, since in that case, the rule on the basis of which electoral roll was prepared having been declared ultravires and thus a challenge can be made in view of gravity of infraction of law in preparation of the electoral roll, whereas the present case totally stands on a different footing. In BODDULA KRISHNAIAH Vs. STATE ELECTION COMMISSIONER[3] the Supreme Court while considering the elections under A.P. Panchayatraj Act, 1994 held as under: “Conduct of election to Gram Panchayat-Voters’ list – Deletion of names of Respondents 6-42 from draft roll challenged in writ petition before High Court- A day prior to the date of poll, High Court by an interim order directing that the respondents be allowed to participate in the election but they could not exercise their franchise – Respondents seeking direction to permit them to exercise their franchise – High Court by a post-poll interim order directing not to declare result of the election – On being moved to vacate that direction, High Court having directing Revenue Divisional Oﬃcer to scrutinize the claims of the respondents and to ascertain whether they were residing in the village – RDO ﬁnding that only 20 persons were residing in the village during the enquiry – Accordingly, High Court directing to conduct fresh poll for them – Held, High Court was not justiﬁed in issuing such direction when poll was already over, even though the writ petition had been ﬁled earlier than the election process was notiﬁed and was therefore, maintainable – Constitution of India, Arts. 226 and 243-O – Andhra Pradesh Panchayat Raj Election Tribunals in Respect of Gram Panchayats, Mandal Parishads and Zila Parishads Rules, 1994, Rr. 2 (1), 12 (d) (iii) – Panchayats and Zila Parishads – Andhra Pradesh Panchayat Raj Act, 1994 (13 of 1994). Once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justiﬁed in interfering with the election process giving direction to the election oﬃcer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. The present dispute is covered by an election dispute and remedy is thus available at law for redressal. Under these circumstances the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justiﬁed in issuing direction to stall the election process. However, this order will not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, to seek remedy by way of an election petition as provided in the Act and the Rules.” In the said decision reliance was also placed on the principles laid down in LAKSHMI CHARAN SEN Vs. A.K.M. HASSAN UZZAMAN[4] where it was held that the limitation sought to be reserved irrespective of the fact whether on publication of electoral rolls are part of the process of election within the meaning of Article 329 (d) of the Constitution of India, and the similar reiteration in other decisions in STATE OF U.P Vs. PRADHAN SANGH KSHETTRA SAMITI[5] a n d MEGHARAJ KOTHARI Vs. DELIMITATION COMMISSION[6]. I n SHRI SANT SADGURU JANARDAN SWAMI (MOINGIRI MAHARAJ) SAHAKARI DUGDHA UTPADAK SANSTHA Vs. STATE OF MAHARASHTRA[7] the apex Court while considering the elections under Maharashtra Cooperative Societies Act, 1961 on consideration of the provisions thereunder vis-à-vis the scope of the Article 226 of the Constitution of India to entertain the writ by the High Court, held that such writ petition challenging the order declaring the election schedule on the ground of illegality in preparation of voters list would therefore not maintainable on the ground that if there was breach of rule of certain mandatory provisions of the rules were not complied with while preparing the electoral roll, the same could be challenged by means of election petition, and such preparation of the electoral roll is an intermediate stage in the process of election of the Managing Committee of a speciﬁed Society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality of breach of rules while preparing the electoral roll. In the aforesaid decision, the apex Court had also had an occasion to consider earlier decision referred to above in BAR COUNCIL OF DELHI (Supra 2) and the same was distinguished on the ground that in that case having held that a writ petition under Article 226 of the Constitution of India should not be rejected on the ground of alternative remedy by way of election petition where, ﬁrstly the challenge is not ground under the Act or rules for ﬁling an election petition, and secondly where the validity of rule is challenged being ultravires and invalid and the tribunal being a creature of the Act or rules has limited jurisdiction and it is not open to decide the validity of the Act and the rules, but that being not the case, on the facts, thus the said decision in BAR COUNCIL OF DELHI (Supra 2) is of no help to the case on hand. For the self same reasons as pointed out in the above mentioned decision, the present case also totally stands on a diﬀerent footing, since it virtually encroaches upon the grounds, which are available in an election petition, on which the election can be challenged. The learned senior counsel appearing for the respondents herein sought to place reliance in ORIENTAL INSURANCE CO. LTD. Vs. T.S.SASTRY [8] to the eﬀect that a Writ under Article 226 was successfully entertained on similar grounds and therefore the present writ petition is maintainable and therefore the Court has ample powers to grant interim direction. Further, it was also pointed out that in this case the decision being that of a Larger Bench and thus the decision in SHRI SANT SADGURU JANARDAN SWAMI (Supra 7) would not have any application. In this case again there was a challenge against an amendment of the bye-law on the basis of which the electoral roll was prepared and it was held that the said amendment or bye-law was in inﬁrmity with the law and thus the electoral roll prepared on such basis would fall down, and therefore, even considering SHRI SANT SADGURU JANARDAN SWAMI (Supra 7)- noting down the fact that in that case the voters list was prepared in terms of extinct rules for certain irregularities committed therein, but where voters list has been prepared on the basis of non existing of the same would be illegal and thus held that interference under Article 226 of the Constitution of India is perfectly justiﬁed. Once again it has to be reiterated that in the present case there being no such situation arising in respect of any rule or provision being declared as invalid on the foot of which such voters list has been prepared. The only ground that such voters list is being challenged is the illegal deletion of the names, which squarely falls within the ambit of an election petition. Therefore, the later case would not have any application to the facts of the case nor would it be any authority to show that on the ground as sought to be raised by respondents 1 to 10, the writ petitioners, the powers under Article 226 of the Constitution of India can be invoked. From the above well-laid principles, it follows apparently that it is not every ground or a reason on which the aggrieved party can approach