J. Satya Babu v. Bhimavaram Co. op. Urban Bank Ltd. , bhimavaramQ
2001-10-10
S.R.SINHA, V.V.S.RAO
body2001
DigiLaw.ai
S. B. SINHA, C. J. ( 1 ) A short but interesting question of law is involved in this writ appeal which arises out of an order dated 2-8-2001 passed by a learned single Judge of this Court in Writ petition No. 9373of 2000. ( 2 ) THE writ petitioner - first respondent herein filed the aforementioned writ petition praying for a direction to the official respondents to initiate the process of election to the board of management of the bhimavaram Co-operative Urban Bank and for a further direction to appoint the existing members of the board of management as persons-in-charge in accordance with the provisions of Section 31 (2) (b) and 32 (7) (a) of the A. P. Co-operative Societies Act, 1964 ( the Act for brevity ). ( 3 ) THE basic fact of the matter is not in dispute. The first respondent is a Co- operative Urban Bank registered under the act. The term of the managing committee expired on 8-6-2000. For the relief stated supra, the Bank filed the writ petition wherein an interim order was passed on 6-6-2000 directing the official respondents herein to consider the existing members of the Board of Management as persons-in-charge as per section 32 (7) (a) of the Act if such member/ members are eligible to be so considered and have not suffered any disqualification. The said writ petition was disposed of by an order dated 2-8-2001 directing the official respondents to continue the election process forthwith from the stage where it had been interdicted by the Court and complete the same as early as possible. Pursuant to or in furtherance of the aforementioned direction, the District Election Authority issued a notification appointing an Election Officer on 14-6-2000. One of the members of the managing committee, namely, M. Venkata ramana Rao, however, filed a writ petition which was marked as W. P. No. 11240 of 2000 praying therein that elections be not held till identity cards are issued in terms of the directions of the Registrar of Co- operative Societies, dated 9-5-2000. In the said writ petition, an application for interim order was filed which was marked as wpmp. No. 14299 of 2000 and by an order dated 28-6-2000, an interim direction was issued to implement the Circular dated 9-5-2000 by deferring the election process. The said writ petition was allowed by an order dated 28-7-2000.
In the said writ petition, an application for interim order was filed which was marked as wpmp. No. 14299 of 2000 and by an order dated 28-6-2000, an interim direction was issued to implement the Circular dated 9-5-2000 by deferring the election process. The said writ petition was allowed by an order dated 28-7-2000. A second notification was, however, issued on 28-2-2001 upon complying with the order in the writ petition. A notification was also issued on 15-3-2001 by the Election Officer upon publication of the voters list. Nominations were received, they were scrutinised and some of them were ignored. 1-4-2001 was the date fixed for holding the election and 2-4-2001 was the date fixed for counting of votes and declaration of results. The State, however, in the meantime enacted A. P. Co-operative societies Amendment Act, 2001 (Act No. 22 of 2001) which received the assent of the governor on 24-3-2001 and published in the gazette on 24-3-2001. Again a writ petition being W. P. No. 15278 of 2001 was filed by some of the members of the managing committee inter alia praying for a direction upon the respondents not to hold election till the judgment in Writ Petition No. 11240 of 2000 is implemented. On 23-3-2001, in wpmp. No. 6734 of 2001, this Court issued an interim direction staying the election. However, on 19-6-2001, it was observed that the said interim direction had abated. Again the Election Officer was asked to continue the olection process by the District Authority on 15-9-2001 wherefor the election schedule was declared on 27-9-2001. It is not in dispute that total voters who were eligible to vote were found to be 15, 464. The writ petition was disposed of directing: subsequently, by an order dated 19-6-2001, this Court vacated the interim order as the stay granted was abated in view of the provisions of article 226 (3) of the Constitution. In view of the same, the election process, which was commenced by virtue of election notification dated 15-3-2001 has to be proceeded with. Having regard to the facts and circumstances of the case, the respondents are directed to continue the election process forthwith from the stage where it was interdicted by this court and complete the same as early as possible as per the provisions of the a. P. Co-operative Societies Act.
Having regard to the facts and circumstances of the case, the respondents are directed to continue the election process forthwith from the stage where it was interdicted by this court and complete the same as early as possible as per the provisions of the a. P. Co-operative Societies Act. ( 4 ) RESPONDENTS 3 to 5 who were impleaded subsequently in the writ petition have preferred this appeal aggrieved by the directions issued by the learned single judge to the effect that the election process which was commenced by virtue of election notification dated 15-3-2001 had to be proceeded with. ( 5 ) MR. T. Jagadish, the learned Counsel appearing on behalf of the appellants inter alia submitted that such a direction could not have been issued having regard to the fact that Section 25 of the Act has since been amended by Act No. 22 of 2001. Mr. Jagdish would urge that having regard to the phraseology used in the amended Act, only those voters who were eligible in terms thereof are entitled to vote and not the entire 15,464 voters. ( 6 ) MR. E. Manohar, the learned Senior counsel appearing on behalf of the respondents, however, submitted that the said amendment cannot be given a retrospective effect. The learned Senior counsel would urge that the matter relating to holding of election is provided for under the A. P. Co-operative Societies Rules, 1964 ( the Rules ) and the procedure laid down therein must be followed in the instant case. Section 25 of the Act as it stood prior to enactment of Act No. 22 of 2001 reads thus: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 as may be prescribed taking into consideration the nature of business transacted by the society, shall have the right to stand as a candidate or to vote in any election to the society. ( 7 ) BY reason of Section 20 of Act No. 22 of 2001, Section 25 of the Act was amended in the following manner:20.
( 7 ) BY reason of Section 20 of Act No. 22 of 2001, Section 25 of the Act was amended in the following manner:20. Amendment of Section 25 : In section 25 of the Principal Act, (i) in sub-section (1), in the proviso, for the words "as may be prescribed taking into consideration the nature of business transacted by the society", the words, "or utilise such minimum services of facilities as may be prescribed taking into consideration the nature of business transacted or the services or facilities made available by the society," shall be substituted; (ii) after sub-section (1), the following sub-section shall be inserted namely: " (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 month; (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. " ( 8 ) SECTION 31 of the Act which provides for constitution of the committee is to the effect that the general body of the society shall constitute a committee in accordance with the bye-laws and entrust the management of affairs of the society to such committee. Section 31 (2) (b) of the Act enjoins a duty upon the Registrar to hold elections before expiry of their term. As noticed hereinbefore, the term of the society expired on 8-6-2000. ( 9 ) RULE 22 of the Rules lays down a detailed procedure as regards holding of election. Sub-rule (1) (a) and sub-rule (3) (a) (1) of Rule 22 which are relevant for the purpose of this case read thus. (1) (a) Notwithstanding anything in the bye-laws of the Societies, election to the committee of all classes of societies, shall be in the manner laid down in this rule. (3) (a) (i) Every person who is a member of the society 20 days prior to the date of poll shall only be eligible to vote. ( 10 ) IT is also relevant to notice rule 22-AAA which reads thus: 22-AAA.
(3) (a) (i) Every person who is a member of the society 20 days prior to the date of poll shall only be eligible to vote. ( 10 ) IT is also relevant to notice rule 22-AAA which reads thus: 22-AAA. Notwithstanding anything contained in these rules the government or the Election Authority may, for the reasons to be recorded in writing direct from time to time, the postponement or alteration of the date or the dates of election to the societies fixed or commenced under Rule 22 or rule 22-B at any stage thereof and the election Officer shall give effect to the directions issued under this rule. On such postponement or alteration of the date or dates of election, the earlier notification shall stand rescinded in all respects and the eligibility of the voters shall be determined in accordance with rule 22 (3 ). ( 11 ) A right to participate in an election may not be a fundamental right but the same is statutory right. Statutory right of a person to take part in an election cannot be taken away, unless the statute is construed in such a manner that it has a retrospective effect either expressly or by necessary implication. Although a distinction as regards vested right and existing right can be drawn there cannot be any doubt whatsoever that principles of interpretation of statute would give rise to a presumption that a substantive right, which is conferred upon a person, would not be taken away by giving the statute a retrospective operation and effect. The golden rule of interpretation is that principle of literal interpretation should be applied. ( 12 ) IT is also well settled principle of law that the Court shall make endeavour to give effect to the Act, Rules and the subordinate legislation framed thereunder. As noticed hereinbefore, normally an election is to be held before the term of the Board of directors expires. Such a statutory duty has been conferred upon the Registrar. ( 13 ) SECTION 20 of the Amending Act no. 22 of 2001, on a plain reading, does not warrant a construction that retrospective effect shall be given thereto. Furthermore, the intention of the Legislature can also be found out from Clauses (a), (b) and (d) thereof which provides for a right upon the voter.
( 13 ) SECTION 20 of the Amending Act no. 22 of 2001, on a plain reading, does not warrant a construction that retrospective effect shall be given thereto. Furthermore, the intention of the Legislature can also be found out from Clauses (a), (b) and (d) thereof which provides for a right upon the voter. A member of society shall be eligible to exeroise the right to vote only if he contributes a minimum share capital as may be prescribed; deposits a minimum thrift in a year as may be prescribed; is a member of the society for a continuous period of twelve months and is not in default in the payment of any amount due to the society for such period as may be prescribed. Admittedly, no rules for the aforementioned purpose had yet been made. Such rules having not been prescribed, no effect can be given to the amended Section 25. ( 14 ) THE right of a person either to vote or to file nomination must in extraordinary circumstances be taken to be the date specified in the notification issued by the competent authority. The right of the person to participate in the election as existing on such date, therefore, in our consider view, must be determined as on such date as notified and not thereafter. The date of notification therefore would be a crucial date for the aforementioned purpose. By reason of the stay granted by this Court in wpmp. No. 6734 of 2001, the notification dated 15-3-2001 was not stayed, but merely holding of election pursuant thereto was stayed. In any event, the voters are not before the Court and as such they cannot be made to suffer for issuing the aforementioned order of stay. As soon as the order dated 19-6-2001 was passed declaring that the said interim order dated 23-3-2001 stood abated, the embargo put upon the authorities to hold election pursuant to the said notification dated 15-3-2001 ceased to exist and the same stood lifted. In that view of the matter, we are of the opinion that the order dated 15-9-2001 issued by the District Election Authority directing the Election Officer to continue the election process which has previously commenced cannot be said to be an illegality and consequently the direction issued by the learned single Judge also is unassailable.
In that view of the matter, we are of the opinion that the order dated 15-9-2001 issued by the District Election Authority directing the Election Officer to continue the election process which has previously commenced cannot be said to be an illegality and consequently the direction issued by the learned single Judge also is unassailable. ( 15 ) THE aforementioned finding is buttressed by reason of the fact that in a case of this nature even the principle of actus Curiae Neminern Gravabit shall be applicable (See A. R. Antulay v. R. S. Nayak ). ( 16 ) WE are furthermore of the opinion that for the said purpose the phraseology in rule 22-AAA of the Rules should also be noticed. Although the said Rule per se has no application, the same in our opinion also provides a clue as regards the manner in which the provisions are required to be interpreted. The portions marked in italics in the said Rule had been declared ultra vires by a Division Bench of the Court in m. A. R. V. S. Sai Baba v. Commissioner of co-op. Societies. If the submission of mr. Jagdish is to be accepted, it will render rule 22-AAA in the same position as it stood prior to the rendition of the aforementioned judgment of the Division Bench. ( 17 ) FOR the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned order. ( 18 ) THE writ appeal is accordingly dismissed. No order as to costs.