Andhra Pradesh High Court - Amravati
C. Naga Vinitha vs The State Of Andhra Pradesh on 24 November, 2022
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
&
HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU
WRIT APPEAL No.159 of 2022
and
WRIT PETITION No.15511 of 2022
COMMON ORDER
Dt.24 11.2022 (Prashant Kumar Mishra, CJ) Writ Appeal No.159 of 2022 has been preferred by two petitioners out of the four petitioners in W.P.No.15400 of 2021, questioning the dismissal of their writ petition by the impugned order passed by the learned single Judge in three writ petitions, i.e. W.P.No.9252, 9557 and 15400 of 2021.
2. In W.P.No.15400 of 2021, the present appellants/writ petitioners have sought declaration that the voters list dated 31.03.2020 prepared/published by the 8th respondent bank is illegal, arbitrary, violative of Articles 14 and 19 of the Constitution of India, the provisions and Rules of the Andhra Pradesh Co-operative Societies Act, 1964 (in short "the 1964 Act") and the guidelines issued by the authorities concerned from time to time and consequently to direct the 8th HCJ & DVSS,J W.A.No.159 of 2022
-2- and W.P.No.15511 of 2022 respondent bank to collect deficit share capital from the members concerned and to publish fresh voters list by taking into consideration of newly defaulted members, illegal removals, disqualifications and who got eligibility as on publishing new voters by inviting objections from the members as required under Rule 22 of the Andhra Pradesh Co-operative Societies Rules, 1964.
3. W.P.No.15511 of 2022 has been preferred seeking issuance of a writ of mandamus declaring the action of the 7th respondent in appointing the 9th respondent as Election Officer vide Prog.Rc.No ACUB02/Elections/2020 dated 19.05.2022, as illegal, arbitrary, violative of the Andhra Pradesh Co-operative Societies Act, 1964, the Rules framed thereunder, byelaws of the 8th respondent Bank and consequently to set aside proceedings vide Prog.Rc.No ACUB02/Elections/2020 dated 19.05.2022 as well as reschedule of elections to the managing committee of the 8th respondent, by the 6th respondent dated 24.05.2022 and to pass any other order.
4. By this common order, we are not dealing with the subject matter of challenge before the learned single Judge in HCJ & DVSS,J W.A.No.159 of 2022
-3- and W.P.No.15511 of 2022 W.P.No.9252 and 9557 of 2022, as no writ appeal is filed against the said part of the order and our consideration is confined to the order passed concerning W.P.No.15400 of 2021. The only challenge in the said writ petition was to the legality of the voters list dated 31.03.2020 passed by the 8th respondent bank.
5. Briefly stated, the fact of the matter is that the managing committee of the Ananthapuramu Co-operative Urban Bank Ltd., Ananthapuramu (in short "the Co-operative Bank") intended to hold elections to the managing committee in terms of Rule 22(1)(a) of the Andhra Pradesh Co-operative Societies Rules, 1964 (in short "the 1964 Rules"). Admittedly, this Co-operative Society is not receiving any aid from the State. One Sri B. Harshavardhan Reddy, Advocate, was appointed as Election Officer by the then managing committee of the Co-operative Bank. He issued election notification in terms of Rule 22(2)(b)(vi) of the 1964 Rules. The election schedule so issued by the Election Officer was stayed by the State Government, which was challenged in W.P.No.11470 of 2020, which was allowed by this Court directing to recommence the election process from the stage where it was HCJ & DVSS,J W.A.No.159 of 2022
-4- and W.P.No.15511 of 2022 obstructed/interrupted in terms of Rule 22(c)(1)(b) of the 1964 Rules, since COVID-19 restrictions are lifted. W.A.No.289 of 2021 filed against the order in W.P.No.11470 of 2020 came to be dismissed by the Division Bench on 29.06.2021. Thereafter, C.C.No.431 of 2021 was filed, in which notices have been issued. The State Government, thereafter, issued memo on 15.04.2021 directing the 2nd respondent to arrange to conduct elections. This was challenged in W.P.No.9557 of 2021. Another writ petition - W.P.No.7061 of 2021 was filed for the same relief as prayed in W.P.No.11470 of 2020. This writ petition was closed in view of the memo of the State Government dated 15.04.2021 directing to conduct elections.
6. After the order in W.P.No.11470 of 2020 and the memo of the State Government dated 15.04.2021, the Election Officer rescheduled the election programme vide order dated 02.05.2021. Thereupon, the 7th respondent postponed this rescheduled election in contravention of the order passed in W.P.No.11470 of 2020.
7. In the above background, which essentially relates to the challenge made in other two writ petitions, against which HCJ & DVSS,J W.A.No.159 of 2022
-5- and W.P.No.15511 of 2022 there is no appeal before us, it was argued in W.P.No.15400 of 2021 that 870 members were removed from the rolls of the Co-operative Bank without assigning reasons and if the share capital amount paid by these members is deficient, steps should have been taken to collect the deficit amount by issuing individual notices to the members. It was also contended that in terms of Rule 22 of the 1964 Rules, it is an obligation of the election authority to educate the members about their rights to participate in the election. Referring to the discrepancy and improper preparation of voters list as on 31.03.2020 as per the final audit report, contentions are advanced that this voters list cannot be the basis to continue the election process.
8. Learned counsel for the 8th and 9th respondent in the writ petition contested the submission of the petitioners in W.P.No.15400 of 2021. It was argued that all procedures relating to publication, calling for objections etc. were duly taken care of while preparing the voters list. The list of ineligible members was displayed on 10.06.2020 not only in the head office but also all its branches as well as other Government offices. Thus, sufficient time was granted calling HCJ & DVSS,J W.A.No.159 of 2022
-6- and W.P.No.15511 of 2022 for objections and the final list was displayed on the notice board at 5.00 p.m. on 12.06.2020. Election notification was issued by the 6th respondent on 12.06.2020 including through two leading vernacular newspapers and no objections were received to the voters list, of the members of the Co- operative Bank as on 27.04.2020.
9. Learned senior counsel also justified the appointment of the 6th respondent as Election Officer and also contended that due opportunity was given to the members to contribute the share capital in deficit, to make good the balance, including publishing in newspapers of local languages; he also justified the action in deleting such members from the Co-operative Bank. It was also argued that writ issued by this Court in W.P.No.11470 of 2020 mandated recommencement of election process from the stage where it was stopped; therefore, there can be no challenge to the voters list.
10. The learned single Judge has specifically observed that respondents 6 to 8 have to recommence the process of election from the stage where it was stopped or interrupted and the date or period of recommencement is from the time when it was stopped, i.e. 17.06.2020 and by this date, entire HCJ & DVSS,J W.A.No.159 of 2022
-7- and W.P.No.15511 of 2022 election process had already commenced including issuance of election notification by the 6th respondent. By this time, voters list was already prepared and published in terms of Rule 22(2)(b)(i) of the 1964 Rules, which was in consequence of the decision of the earlier managing committee to proceed with the election process to elect a new managing committee, as the term of the earlier managing committee came to an end by 26.07.2020; therefore, appointing the Election Officer on 28.05.2020 is in compliance of these Rules.
11. It is settled that once election notification is issued, the voters list published before the election notification cannot be re-drawn, varied or modified. The voters list as was available and in force should alone be considered for ensuring election to the managing committee of the Co-operative Bank, which was directed to be recommenced by this Court in W.P.No.11470 of 2020.
12. In our considered view, the learned single Judge has rightly refused to interfere with the matter to direct publication of fresh voters list. In the teeth of the order passed in W.P.No.11470 of 2020, writ as prayed for in HCJ & DVSS,J W.A.No.159 of 2022
-8- and W.P.No.15511 of 2022 W.P.No.15400 of 2021 cannot be issued, as it runs contrary to the writ issued by this Court in W.P.No.11470 of 2020.
13. In W.P.No.15511 of 2022, action of the 7th respondent in appointing the 9th respondent as Election Officer has been challenged, as also prayer is made for rescheduling the election.
14. According to the petitioners, as per Rule 22(2)(a) of the 1964 Rules, the only competent authority to appoint the 6th respondent as Election Officer is the District Collector of the District, whereas the 7th respondent, the person-in-charge of the Co-operative Bank, has appointed the 6 th respondent, an advocate, as Election Officer. Therefore, the same deserves to be set aside. It is also argued that the Election Officer must be an employee of the Government, whereas the 6th respondent is not a Government employee, being a practicing advocate.
15. Respondent Nos.1 to 5 have filed counter-affidavit stating that in the managing committee meeting held on 27.08.2019 vide resolution No.2731, the Chief Executive Officer/Chairman was authorised to appoint an advocate as HCJ & DVSS,J W.A.No.159 of 2022
-9- and W.P.No.15511 of 2022 Election Officer to complete the election process. The Divisional Cooperative Officer, Ananthapuramu, has amended Byelaw No.28(1) after obtaining prior approval of the Commissioner for Cooperation and Registrar of Cooperative Societies that if the bank is not in receipt of state financial aid, they themselves can conduct elections before expiry of elected term in tune with the provisions of Section 31(2)(c) of the 1964 Act. Since the bank is neither a subsidiary bank of Reserve Bank of India, nor it is receiving Government aid, the managing committee of the bank becomes election authority as provided under Byelaw No.28 of the bank for conduct of elections. The District Collector will be the election authority for the Societies, which are in receipt of Government aid or Un-aided Societies, which have requested the Department for conduct of elections as per the provisions of Section 31(2) of the 1964 Act read with Rule 22 of the 1964 Rules.
16. To deal with the issue involved in these cases, it would be necessary to refer to the provisions contained in Section 31(2) of the 1964 Act. Clause (b) of Section 31(2)(b) of the 1964 Act casts a duty on the Registrar to hold elections to the office of the members of the committee of a society, which HCJ & DVSS,J W.A.No.159 of 2022
-10- and W.P.No.15511 of 2022 received State aid as specified in Section 43 of the 1964 Act before the expiry of their term. Whereas clause (c) provides that in respect of other societies, it shall be the responsibility of the incumbent committee of such society to hold elections to the office of the members of the committee in the manner specified in the byelaws before the expiry of the term; provided that where the committee of a society requests the Registrar to hold elections to the office of the members of the committee, the Registrar shall hold elections to the office of the members of the committee in the manner prescribed on payment of costs in advance.
17. In its meeting held on 27.08.2019, the managing committee passed resolution No.2731 to conduct elections and appoint an advocate as Election Officer to complete the election process. Vide proceedings Rc.No.543/2010-C dated 07.04.2010, clause (a) was inserted in Byelaw No.28(1) providing that as per Section 31(2)(c) of the 1964 Act, Rule 22(1) of the 1964 Rules, Anantapur Cooperative Town Bank Ltd., Anantapuramu is not getting any aid from the State Government; hence, the existing managing committee HCJ & DVSS,J W.A.No.159 of 2022
-11- and W.P.No.15511 of 2022 themselves conduct elections to the new managing committee before expiry of their tenure.
18. Thus, under the provisions of the 1964 Act and the relevant byelaws as amended in the above manner, the managing committee is free to conduct its elections and it is not bound to hold elections under an Election Officer appointed by the District Collector. Arguments to the contrary advanced by the petitioners are totally misconceived and they have been raised only to derail the election process.
19. For the foregoing reasons, both W.A.No.159 of 2022 and W.P.No.15511 of 2022 deserved to be, and are, hereby, dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.
Sd/- Sd/- PRASHANT KUMAR MISHRA, CJ D.V.S.S. SOMAYAJULU, J MRR