HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 3471 of 2010 DATE: 2-3-2010 Between: 1. S. Narasimha Rao and 10 others … Petitioners and 1. Government of A.P. rep. By its Principal Secretary, Cooperative Department Secretariat, Hyderabad and 5 others … Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 3471 of 2010 ORDER: The action of the respondents in postponing elections to the Managing Committee of the 6th respondent-Society is under challenge in this writ petition as being arbitrary and illegal. Heard Sri Nimmagadda Satyanarayana, learned counsel for the petitioners and the learned Government Pleader for Cooperation and at their request the writ petition is being disposed off at the admission stage. An election notification was issued on 30.01.2010 directing conduct of elections to constitute the Managing Committee of the 6th respondent-Society. The fifth respondent was appointed as the Election Officer and he issued an election notice fixing the date of receipt of nominations as 06.02.2010. The nominations filed for election to 13 constituencies were examined on 08.02.2010. On the same day they were declared valid and election symbols were allotted. The elections were scheduled to be held on 14.02.2010 for which necessary arrangements were made. The third respondent issued proceedings dated 11.02.2010 directing postponement of elections from 14.02.2010 to an indefinite date. In the said order dated 11.02.2010 the third respondent records that the second respondent had instructed him over telephone to conduct an enquiry into the feasibility of conduct of free and fair elections and to find out whether there was any breakdown of law and order affecting the peaceful and lawful conduct of elections; the Election Officer in his report dated 10.02.2010 had reported that notice of elections for Ponnalur PACS was issued by him on 31.02.2010, nominations had been received on 06.02.2010, the nominations had been scrutinized on 07.02.2010 and the process of withdrawal was completed on 08.02.2010; he had also enquired from the Station House Officer of the possibility of conduct of peaceful elections; the Station House Officer had reported on 11.2.2010 that there were two groups in the fray and the contest was very keen, three persons had stated before him that there were discrepancies in the voters list, and he apprehended that both parties may indulge in disturbing the poll process and create law and order problem. Even though the report of the Station House Officer dated 11.2.2010 does not refer to any specific incidents of violence necessitating an inference of a breakdown of law and order affecting peaceful and lawful conduct of elections, the 3rd respondent opines that, after finalizing the contesting candidates, incidents took place which gave apprehension of law and order situation for peaceful conduct of elections. He does not specify as to what were the incidents which gave rise to such an apprehension on his part. He further states that the reports of the Election Officer and Station House Officer were obtained and had been brought to the notice of the Government; a phone message was received from the Government/Honourable Minister of Cooperation stating that the Government had taken a decision to postpone the election under Rule 22(c)(1) basing on the reports of the Election Officer and the Station House Officer concerned; and, in the circumstances, he had directed the District Cooperative Officer to inform the election officer to postpone the elections in view of the telephonic orders of the Government. Sri Nimmagadda Satyanarayana, learned counsel for the petitioners, would submit that there is no material on record to hold that there was a grave law and order problem; no complaints were registered against any of the voters or the contesting candidates; no person likely to indulge in violence was identified and it is only because of political rivalry, and apprehending that the second respondent’s candidates may lose, that the elections were postponed, that too indefinitely. While the Learned counsel would attribute malafides to the second respondent, I consider it wholly inappropriate to examine the question of malice in the absence of the second respondent being arrayed as a respondent eo-nominee. The Learned Government Pleader for Cooperation would place reliance on the reports of the Sub-Divisional Police Officer and the Election authority to contend that these reports constitute material on record for formation of the opinion by the Government that there was a breakdown of law and order which affected the possibility of peaceful and lawful conduct of elections. Rule 22 of the A.P. Co-operative Societies Rules, 1964 relates to Conduct of Elections to Co-operative Societies. The Rule provides for an Election Authority and the appointment of an Election Officer who is required to issue the communication of election, requisition for production of the records and the voters list, to receive nominations, to scrutinize them, to allow their withdrawal and to publish the final list of contesting candidates. The final list of contesting candidates is to be prepared on the date of withdrawal as stipulated in Rule 22(2)(b)(x). Rule 22(2)(b)(xi) provides that the Election Officer shall hold the poll within a period of seven days of publication of the final list of contesting candidates. Rule 22(2)(b)(xi) prescribes a time frame for conduct of poll in order to ensure that elections are held as scheduled and are not, needlessly, postponed. Under Rule 22-C(1), notwithstanding anything contained in the rules, the Government or the Election authority may direct postponement of elections under certain circumstances including the breakdown of law and order affecting the peaceful and lawful conduct of elections. Clause (b) of the Rule 22-C(1) stipulates that the postponement shall be done only by issue of an order which shall specify the grounds of postponement. Exercise of power under Rule 22-C(1)(i) to direct postponement of elections can only be, among others, on the circumstance of a breakdown of law and order affecting the peaceful and lawful conduct of elections. The ingredients of Section 22-C(1) are (a) the Government or the Election authority may direct postponement of elections; (b) postponement of elections can be ordered under one or more of the circumstances mentioned in Clauses (i) to (iii); (c) Clause (i) of Rule 22-C(1) would be attracted if there is a break-down of law and order affecting the peaceful and lawful conduct of elections; and (d) satisfaction of the Government, that breakdown of law and order is such as to affect the peaceful and lawful conduct of elections, must be borne out from the material on record. The “Concise Oxford Dictionary of Current English” edited by R.E. Allen (eighth edition) defines ‘breakdown’ to mean ‘collapse or disintegration’. Stray instances of violence giving rise to a law and order problem would not amount to a breakdown of law and order. It is only where there is a collapse or disintegration of law and order can it be said that there has been such a breakdown. Further, a breakdown of law and order by itself will not suffice for a decision to be taken to postpone elections. It is only if the breakdown of law and order is of such a magnitude as to affect the peaceful and lawful conduct of elections that the power under Rule 22-C(1)(i) can be exercised to postpone the elections. Formation of opinion, regarding breakdown of law and order affecting the peaceful and lawful conduct of elections, must not only be based on the material on record but must also be preceded by application of mind to relevant factors and rejection of irrelevant ones. (Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai[1]). Such application of mind must be on the material on record. (Devinder Singh v. State of Punjab[2]). The Government is required to arrive at its opinion from circumstances suggesting what is set out in Rule 22-C(1)(i) of the Rules. If these circumstances do not exist the Government cannot say that, in its opinion, they exist. If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds. (Barium Chemicals Ltd. v. Company Law Board[3]). The existence of circumstances from which the inferences constituting the opinion, as the sine qua non for action, are to be drawn must be demonstrable and the existence of such “circumstances”, if questioned, must be proved at least prima facie. (Swadeshi Cotton Mills v. Union of India[4]). Formation of opinion is, no doubt, subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind exists, the action would be exposed to interference unless the existence of the circumstances is made out. (Barium Chemicals Ltd.3) In cases where an issue is raised that the Government’s opinion has been formed in a manifestly arbitrary or perverse fashion without regard to patent, actual and undeniable facts, or that such opinion has been arrived at on the basis of irrelevant considerations or no material at all, or on materials so tenuous, flimsy, slender or dubious that no reasonable man could reasonably reach that conclusion, the Court is entitled to examine the validity of the formation of that opinion by the Government in the context and to the extent of that issue. If the satisfaction of the Government in regard to the existence of any of the conditions is based on no evidence, or on irrelevant evidence or on an extraneous consideration, it will vitiate the order and the Court will be justified in quashing such an illegal order. (Swadeshi Cotton Mills4) While the opinion regarding break down of law and order affecting peaceful and lawful conduct of elections, is required to be formed by the Government, the basis for formation of such opinion must be evident from the material on record. The question which would, therefore, necessitate examination is whether there is material on record for formation of the opinion that there is a distinct possibility of a breakdown in law and order which will affect the peaceful and lawful conduct of elections necessitating its postponement, that too, indefinitely. This Court, by order dated 17.02.2010, directed production of the entire relevant records. The records, produced before this Court, disclose that the District Collector and District Election Authority had requested the Superintendent of Police, Ongole, vide letter dated 09.02.2010, to assess the requirement of police personnel and for preparation of bandobust. A list of polling stations was enclosed to the said letter. The Sub-Divisional Police Officer, Kandukur, vide his report dated 11.02.2010, informed the Superintendent of Police, Prakasam District that, as there were discrepancies in the voters list like mentioning of SC Voters as OC Voters, a law and order problem may arise; he had got the matter enquired by the Sub-Inspector, Ponnalur PS; he received information that both the parties may indulge in disturbing the polling process and create a law and order problem; and, hence, adequate bandobast with two Sub-Inspectors, four Assistant Sub- Inspectors and 10 police Constables was going to be provided on the day of polling. Discrepancies in the voters list is not among the enumerated circumstances in Rule 22-C(1) for postponement of elections. This is a matter to be agitated before the Election Tribunal after the election result is declared. Under Section 61(3) of the A.P. Co-operative Societies Act, 1964, every dispute relating to, or in connection with, any election to a committee of a society shall be referred for decision to the Tribunal having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final. Under Section 61(4), every dispute relating to, or in connection with, any election shall be referred under sub-section (3) only after the date of declaration of the result of such election. The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes any other form, the right and remedy being creatures of the statute. (Mohinder Singh Gill v. Chief Election Commissioner[5]). The Sub-Divisional Police Officer’s report to the Superintendent of Police dated 11.02.2010 does not disclose the expected law and order problem to be so grave as to amount to a break down of law and order affecting the peaceful and lawful conduct of elections necessitating its postponement. On the other hand the said report dated 11.02.2010 shows that it would suffice for maintenance of law and order if adequate bandobusth was provided, on the day of polling, with a larger police force. The District Collector, in his report to the Government, claims to have received information that a law and order problem may arise and for that reason he was postponing elections. The only proceedings on record which reveals the possibility of a law and order problem is the report dated 11.02.2010 addressed by the Sub-Divisional Police Officer to the Superintendent of Police, a copy of which was marked to the Collector and District Magistrate, Prakasam District. While the report dated 11.02.2010 refers to the possibility of a law and order problem on the date of polling it does not suggest, let alone state, that there could be a breakdown (collapse) of law and order, that too of such a nature as to affect the peaceful and lawful conduct of elections. Except these proceedings, the record does not disclose details or the identity of any other source of information regarding the possibility of a break-down of law and order on the day of polling. The source of information, for the view taken by the second respondent that elections should be postponed on this ground, is also not discernible from the record placed before this Court. It is not sufficient to assert that the circumstances exist and give no clue as to what they are because the circumstances must be such as to lead to conclusions of certain definiteness. (Barium Chemicals Ltd.3). Ordinarily elections, once notified, should be held on the scheduled date. Postponement of elections can be justified only if the circumstances were such that it is not feasible to hold them because of a breakdown of law and order affecting peaceful and lawful conduct of elections. It is only in circumstances where the law and order problem situation is so grave as to amount to its breakdown affecting peaceful and lawful conduct of elections that the formation of an opinion, that elections should be postponed, would be justified. There is no such material on record. On the contrary the report of the Sub-Divisional Police Officer dated 11.02.2010 discloses that, while a law and order problem was expected, it could be controlled by deployment of additional police force. The report dated 11.02.2010 does not even recommend postponement of elections on this score. It is evident, therefore, that the circumstances set out in Rule 22-C(1)), of law and order having broken down affecting peaceful and lawful conduct of elections necessitating its postponement, do not exist. On the material on record, including the aforesaid report dated 11.2.2010, no reasonable person would have formed the opinion which the Government has. The Government could not, therefore, have postponed elections on this ground. The decision of the Government to postpone elections is set aside. The third respondent shall take all necessary steps for providing adequate security arrangements for holding elections and, thereafter, hold elections in accordance with law at the earliest in any event on or before 31.03.2010. The writ petition is, accordingly, disposed of. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Date: 02.03.2010 Note: Copy to be sent forthwith to all the respondents. B/o Usd/mrkr/asp [1] (2005) 7 SCC 627 [2] (2008)1 SCC 728 [3] AIR 1967 S.C295 [4] (1981) 1 SCC 664 [5] (1978) 1 SCC 405