Andhra HC (Pre-Telangana)
Runkana Thowdu And Ors. vs Sri Satya Sai Inland Fishermen ... on 28 April, 2004
Equivalent citations: 2004(3)ALT401
Author: R. Subhash Reddy
Bench: R. Subhash Reddy
ORDER R. Subhash Reddy, J.
1. This Writ Petition is filed, seeking Writ of Mandamus, to declare the action of the respondent authorities in taking steps to conduct elections to the Managing Committee of the first respondent-Sri Satya Sai Inland Fishermen Co-operative Society Limited, without including the names of the petitioners in the voters' list prepared, to hold elections to the first respondent-Society, as illegal and arbitrary.
2. The first respondent is a fishermen Cooperative society, registered under A.P. Cooperative Societies Act, 1964. Some of the members of the first respondent-Society, earlier approached this court by filing Writ Petition Nos. 19248 and 20098 of 2003. This court by judgment dated 6-1-2004, disposed of the said Writ Petitions, directing the Assistant Director of Fisheries, Vizianagaram, to take steps to hold elections to the said society, within a period of four weeks from the date of receipt of the said order. Consequently, the District Collector/ Election Authority, Vizianagaram District has issued proceedings No. 7/A/2003 (Fish), dated 30-1-2004, in exercise of powers under Rule 22 (b) of the A.P. Cooperative Societies Rules, 1964, appointing one Sri P. Ramakrishna, Assistant Inspector of Fisheries, Bobbili, as Election Officer, to hold elections to the Managing Committee of the first respondent-Society, by following the due procedure as per the amended provisions of the A.P. Co-operative Societies Rules, 1964. Pursuant to the requisition, the Chief Executive Officer of the first respondent-Society has prepared voters' list on 7-2-2004 and thereafter, the Election Officer has issued election notification on 19-2-2004, to conduct elections to the Managing Committee of the first respondent - Society on 6-3-2004.
3. As the names of the petitioners were not figured in the voters' list prepared on 7-2-2004, the petitioners have represented to the Person-in-Charge of the society (or inclusion of their names in the voters' list. When the Person-in-Charge has rejected the representation of the petitioners on 14-2-2004 for inclusion of their names in the voters' list on the ground that they have not completed 12 months as members of the society, as required under the rules of the A.P. Co-operative Societies Rules, 1964, this Writ Petition is filed.
4. It is the case of the petitioners that they were enrolled as members of the first respondent-society, long prior to the election notification dated 19-2-2004 and in all records of the society, total members of the society is shown as 80 members including those of the petitioners. It is their further case that without any valid reason, their names were omitted in the voters' list, which is prepared for conduct of elections to the Managing Committee of the first respondent-Society. At the stage of admission, this court has granted interim order for stay of conduct of elections.
5. In the counter affidavit filed on behalf of the first respondent-Society, it is stated that all the petitioners herein are admitted as members of the first respondent-society, pursuant to the resolution of the General Body dated 12-2-2003 and they have deposited share capital only on 13-2-2003. Further it is stated, inasmuch as the petitioners have not completed the period of 12 months as member of the society, they could not acquire the eligibility to vote, in view of Section 25 (1-A) (c) of the A.P. Cooperative Societies Act, 1964.
6. In the similar lines, the impleaded respondent also filed counter affidavit admitting that the petitioners are the members of the first respondent-Society. However, it is stated that, out of total members of the society. 59 members were enrolled as members on 12-2-2003 and as much as the petitioners have not completed the 12 months' period, as members of the society, they are not eligible to vote in the election to the Managing Committee of the first respondent-Society. As such, it is stated, the names of the petitioners were rightly did not figure in the voters' list prepared on 7-2-2004. It is his further case that inasmuch as election process has begun, in view of alternative remedy, to raise election dispute under Section 61 (3) of the A.P. Co-operative Societies Act 1964, this Writ Petition is not maintainable under Article 226 of the Constitution of India.
7. Heard Sri P. Venugopal, learned Counsel appearing on behalf of the petitioners, learned Government Pleader for Fisheries and Sri Duba Nagarjuna Babu, learned Counsel appearing on behalf of Respondent No. 7.
8. It is submitted by Sri P. Venugopal, learned Counsel for the petitioners, that inasmuch as the petitioners were already shown as members of the first respondent-Society, there are no valid reasons for excluding their names in the voters' list, prepared on 7-2-2004, for conduct of elections to the Managing Committee of the first respondent-Society. The learned Counsel submits that the petitioners have already completed 12 months' period, as members of the society, by the date of election notification issued on 19-2-2004; as such, they are eligible to vote even as per Section 25 (1-A) (c) of the A.P. Cooperative Societies Act, 1964. The learned Counsel for the petitioners relied on the judgment of this court in Satya Babu v. Bhimavaram Coop. Urban Bank Limited, Bhimavaram, W.G. District, (D.B.) wherein, the Division Bench of this court has held that amendments to Section 25 of the A.P. Co-operative Societies Act, 1964, by Amending Act No. 22 of 2001, has no retrospective effect and the persons, who are eligible as on the date of election notification, are entitled to participate in the election. The learned Counsel also relied on the judgment in the case of the Friends Consumers Cooperative Stores Limited v. The Election Officer, 1979 (2) ALT 288 wherein a learned Single Judge of this court has held that Bye-law prepared contrary to Section 25 of the A.P. Cooperative Societies Act, 1964 can be disregarded by the Election Officer, for the purpose of conduct of elections.
9. On the other hand, the learned Government Pleader and Sri Duba Nagarjuna Babu, appearing on behalf of the respondents, submit that undisputedly the petitioners are the members of the first respondent-Society, only pursuant to the resolution of the General Body dt. 12-2-2003, and, as they have not completed 12 months' period, they are not eligible to vote in the election to the Managing Committee of the first respondent-society. It is further submitted that in view of amendments to Rule 22 of the A.P. Co-operative Societies Rules, 1964, which came into force from 15-1-2002, as the petitioners have not completed 12 months' period, as members of the society, by the date of preparation of list of eligible voters, as per Rule 22 (2)(b)(ii) of the A.P. Co-operative Societies Rules, 1964, they are not eligible to vote in the elections to the Managing Committee of the first respondent-Society. The learned Counsels also relied on the judgment of this court in Velpula Sundara Rao v. Person-in-Charge, Penuganchiprolu Primary Agrl. Coop. Society, 1997 (2) An.W.R. 729 = 1998 (4) ALO 597. (D.B.) wherein, the Division Bench of this court has held that the Writ Petition questioning the election to the Managing Committee of the Society is not maintainable in view of alternative remedy to raise election dispute under Section 61 (3) of the A.P. Cooperative Societies Act, 1964. The learned Counsels further relied on the judgment of this court in the case of M.A. Sami Khan v. District Collector, (D.B.) wherein the Division Bench of this court held that the matters involving several disputed questions of fact cannot satisfactorily be adjudicated upon in Writ jurisdiction.
10. In view of the above respective contentions, the only question which arises for consideration is: whether exclusion of names of the petitioners from the voters' list prepared on 7-2-2004 for conduct of elections to the Managing Committee of the first respondent-Society is valid or not.
11. Section 25 of the A.P. Co-operative Societies Act, 1964, as amended by Act 2 of 2001, reads as follows:
"25. Vote and manner of Its exercise: (1) Subject to such rules as may be made in this behalf, every member shall have one vote in the affairs of the society and shall exercise his vote in person and not by proxy.
[Provided that no member of a society, belonging to such class of societies and who failed to transact such minimum business (or utilize such minimum services or facilities as may be prescribed taking into consideration the nature of business transacted or the services or facilities made available by the society) shall have the right to stand as a candidate or to vote in the election to the society.] (1-A):-- A member of a society shall be eligible to exercise the right to vote only if he:--
(a) contributes a minimum share capital as may be prescribed.
(b) deposits a minimum thrift in a year as may be prescribed.
(c) is a member of the society for a continuous period of twelve months.
(d) is not in default in the payment of any amount due in cash or kind to the society for such period as may be prescribed.
(2) xxxxxxx xxxxxxx xxxxxxx
xxxxxx xxxxxx xxxxxx
Subsequently even Rule 22 of the A.P. Cooperative Societies Rules, 1964 was also amended, which came into force form 15-1-2002. The relevant provision of Rule 22 (2) (b) reads as follows:
22 (2) (b): The Election Authority shall appoint an Election Officer for such society at least forty five (45) days prior to the expiry of the term of the Managing Committee for the purpose of conducting elections. The Election Schedule shall be as prescribed below:
(i) The Election Officer shall issue the communication of election and requisition for production of records and voters list to the society within three days from the date of receipt of his/her appointment orders.
(ii) The Chief Executive Officer or President of the Society where there is no Chief Executive Officer shall prepare and publish the list of members eligible to vote within seven days after receipt of the communication from Election Officer. It shall be village wise, with a map of territorial jurisdiction of society, arranging villages in certain starting from the society head Quarters to North, East, maintaining 'contiguity', clockwise, indicating the Sl.No., Name of Member, Father's Name, village/locality, age community, sex (Male/Female)
(iii) xxxxxxxxxxx xxxxxxxxx xxxxxxxxxxx xxxxxxxxx
12. In view of Section 25 (1-A) of the A.P. Co-operative Societies Act, 1964, and Rule 22 (2) (b) of the A.P. Co-operative Societies Rules, 1964, it is clear that those who have completed 12 months' period by the date of preparation of voters' list, as contemplated under Rule 22 (2) (b) (ii) of the A.P. Co-operative Societies Rules, 1964, only are eligible to vote in the election. Though, the Division Bench of this court, in Satya Babu v. Bhimavaram Co-op. Urban Bank Limited, Bhimavaram, W.G. District (1 supra), decided on 10-10-2001, held that the persons who are eligible as on the date of election notification are entitled to participate in the election, but, in the said judgment, it is clearly observed that having regard to amended provisions to Section 25-(1-A) of the A.P. Co-operative Societies Act, 1964, no rules have been framed, but, it is to be seen, subsequent to the said judgment, rules have been amended and as per amended Rule 22 of the A.P. Co-operative Societies Rules, 1964, the Election Officer shall issue the communication of election and requisition for production of records and voters list of the society within three days from the date of receipt of his/her appointment order. On receipt of such communication, the Chief Executive Officer or President of the society, shall prepare and publish the list of the voters, eligible to vote in the election. In the instant case, upon such requisition, the Chief Executive Officer of the first respondent-society has prepared voters' list on 7-2-2004, by which time, the petitioners have not completed 12 months' period, so as to acquire eligibility to vote in the election, as per Section 25 (1-A) of the A.P. Co-operative Societies Act, 1964. Further, in view of very language under Section 25 (1) of the A.P. Co-operative Societies Act, 1964 and amended Rule 22 of the A.P. Co-operative Societies Rules, 1964, the contention of the learned counsel for the petitioners that the petitioners have completed 12 months' period by the date of election notification, and they are eligible to vote, cannot be accepted, having regard to the subsequent amendments effected to Rule 22 of the A.P. Co-operative Societies Rules, 1964. As such, application of the judgment of this court in Satya Babu v. Bhimavaram Co-op. Urban Bank Limited, Bhimavaram, W.G. District (1 supra) is to be considered, in the light of amended Rule 22 of A.P. Co-operative Societies Rules, 1964. Even the said judgment is rendered clearly observing that in absence of rules framed subsequent to the amendment of Section 25 of the A.P. Co-operative Societies Act, 1964, the voters who are eligible to vote as on the date of notification are entitled to cast their votes in the elections. But, in view of subsequent amendment effected to Rule 22 of the A.P. Co-operative Societies Rules, 1964, the said judgment relied on by the learned Counsel for the petitioners cannot support their case, having regard to the facts and circumstances of this case. In view of Rule 22 (2) (b) (ii) of the A.P. Co-operative Societies Rules, 1964, read with Section 25(1-A) (c) of the A.P. Co-operative Societies Act, 1964, I am of the considered view that unless a member completes 12 months' period as a member of the Society by the date of preparation of voters' list prepared under Rule 22(2)(b)(ii) of the A.P. Cooperative Societies Rules, 1964, such member is not eligible to vote in the elections. As much as, in the instant case, the petitioners, who were admitted as members of the first respondent-Society, pursuant to the resolution of the General Body, dated 12-2-2003 have not completed 12 months' period by the date of preparation of voters list as on 7-2-2004; they have not acquired eligibility to vote in the election to the Managing Committee of the first respondent-Society. Therefore, the names of the petitioners were rightly not figured in the voters' list prepared for conduct of elections. Though the learned Counsels for the respondents raised further contention that the very Writ Petition is not maintainable, under Article 226 of the Constitution of India, in view of availability of alternative remedy by way of seeking reference to the Election Tribunal under Section 61 (3) of the A.P. Cooperative Societies Act, 1964, as I have held that the petitioners have not acquired eligibility to vote in the election, there is no need to record any finding on this aspect. Inasmuch as the petitioners have not completed 12 months' period as member of the first respondent-society and in absence of acquiring right to vote, the petitioners cannot question the exclusion of their names from the voters' list prepared on 7-2-2004, on any valid grounds. In that view of the matter, the Writ Petition is devoid of merits.
13. The Writ Petition is dismissed accordingly. It is open for the respondent authorities to proceed with the election process from the stage where it is stopped, for conduct of elections. No costs.