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2013 DIGILAW 373 (AP)

D. Madhava Reddy v. Janga Raghava Reddy

2013-05-15

VILAS V.AFZULPURKAR

body2013
JUDGMENT (Vilas V. Afzulpurkar, J.) WAMP.No.1511 of 2013 in WA(SR).No.76282 of 2013: Leave granted. WA.Nos.644, 656, 657, 658 and 659 of 2013 and WA(SR) No.76282 of 2013: Four writ appeals, out of this batch of writ appeals, are preferred by the Government whereas other two writ appeals are preferred by the fourth respondent in WP.No.5238 of 2013. The common order of the learned single Judge disposed of four writ petitions, which are interlinked and relate to the same subject matter. 2. The successful writ petitioners are arrayed in these appeals are respondents but for the sake of convenience the parties are referred to as they were arrayed in the writ petitions. 3. The subject matter of challenge in the writ petitions was an order passed by the Election Officer on 19.02.2013 postponing the elections to the office bearers and managing committee of the Warangal District Cooperative Central Bank and further order passed by the Registrar of Cooperative Societies, Andhra Pradesh dated 25.02.2013 canceling the process of election and directing conduct of elections afresh. The first of the two orders dated 19.02.2013 were subject matter of challenge in WP.Nos.5238 and 5365 of 2013 whereas the later of the two orders dated 25.02.2013 was subject matter of challenge in WP.Nos.6084 and 6103 of 2013. By the judgment impugned, the learned single Judge allowed the writ petitions by setting aside the said impugned orders. Hence, these writ appeals are preferred by the Government as well as by the fourth respondent, who had contested the writ petitions. 4. We have heard the learned Government Pleader for Cooperation as well as Mr. A. Narasimha Rao, learned counsel, appearing in support of the appeals and Mr. K. Ramakrishna Reddy and Mr. Vedula Venkataramana, learned senior Counsel, who opposed the appeals by appearing on behalf of the writ petitions. 5. The undisputed facts are as under: (a) The third respondent, election officer, issued notice dated 18.02.2013 convening the meeting of the Managing Committee members of the bank aforesaid for electing office bearers. The meeting was scheduled to be held on 19.02.2013 at 8 AM and out of 19 elected Directors, 13 have attended the meeting and as per the requirement, 10 members constitute sufficient quorum. The meeting had first taken up filling of 2 vacancies by co-option and petitioners in WP.No.6103 of 2013 were co-opted to the two unfilled SC vacancies in the Managing Committee unanimously. The meeting had first taken up filling of 2 vacancies by co-option and petitioners in WP.No.6103 of 2013 were co-opted to the two unfilled SC vacancies in the Managing Committee unanimously. Thereafter, the process of election of office bearers i.e. President and Vice President, commenced. Petitioner in WP.Nos.5238 and 6084 of 2013 and first petitioner in WP.No.5365 of 2013 filed nominations for the post of President and Vice-President respectively. Since no other nomination was received, the election officer displayed the list of nomination, after scrutiny under Rule 22(12)(b) of the Andhra Pradesh Cooperative Societies Rules, 1964 (for short 'the Rules') showing one nomination of Janga Raghava Reddy for the post of President and one nomination of Rapolu Pullaiah for the post of Vice President. (b) At that stage, it appears that the election officer received a petition from one of the elected directors that some of the directors have been forcibly abducted and requested for postponement of election process. The election officer, thereafter, prepared a report along with the written statement of the managing committee members present at the meeting and that together with the petition received from one of the elected director, is said to have been submitted to the election authority. Thereupon, the first of the impugned orders were issued by the election officer on 19.02.2013 based on telephonic instructions of the election authority and postponed the elections. The said order of postponement is subject matter of challenge in the first two writ petitions, referred to above. (c) It appears that, thereafter, the Registrar of Cooperative Societies, who is the election authority under Section 31(3)(a) of the Andhra Pradesh Cooperative Societies Act, 1964 (for short 'the Act'), called for a report from the District Collector, Warangal, directing him to conduct an enquiry and based on the report of the District Collector that the election process was vitiated, the Registrar cancelled the election process and directed the elections to be conducted afresh vide impugned proceedings dated 25.02.2013, which is the subject of the later two writ petitions, referred to above. 6. 6. After hearing the rival contentions of the writ petitioners, the Government as well as the contesting respondent, the learned single Judge found that the District Collector, whose report is relied upon by the election authority/Registrar was an extraneous material inasmuch as for the District Cooperative Central Bank elections, the Registrar is the competent authority in terms of Rule 22(2)(a) of the Rules. Learned single Judge also found that the report of the election officer was not taken into consideration by the election authority while passing the impugned orders. It was also held that 13 managing committee members, who were present at the meeting, had given a written statement to the election officer that they have voluntarily attended the meeting and exercised their franchise without any influence or force, which was a material circumstance required to be taken into consideration. Lastly, it was also held that the power under Rule 22-C (1)(b) of the Rules (which empowers the Government or the Election Authority to postpone the elections) could not have been exercised by the election authority without passing a reasoned order specifying the grounds for postponement in terms of Rule 22-C(1)(b) of the Rules. Consequently, it was further held, alternatively, that even if action of postponement of elections is valid, for any reason, the election process is required to be conducted from the stage at which it was interrupted and thus, direction to conduct fresh elections by canceling the entire election process was, in any case, not sustainable. 7. Learned Government Pleader as well as Mr. A. Narasimha Rao, learned counsel, who appeared in support of the appeals, pointed out that the election officer had sent two different reports both dated 19.02.2013 and pointed out that in the first of the reports, the election officer referred to displaying of nominations, after scrutiny, in Form IV and V whereas in the second report sent on the same day, he mentions that valid nominations, after scrutiny, have been displayed in Form XVI and XVII. Further, in the first report, he mentions that the list of nominations received was displayed on the notice board in Form III whereas in the second report, it is stated that the list of nominations have been displayed in the notice board in Form XV. Further, in the first report, he mentions that the list of nominations received was displayed on the notice board in Form III whereas in the second report, it is stated that the list of nominations have been displayed in the notice board in Form XV. It is also contended that the District Collector is the highest authority in the district and there is nothing wrong in calling for report from him with regard to the objection petition of one of the directors and as such, the order of election authority impugned having been based on the said report sent by the District Collector, it cannot be said that the election authority has relied upon an extraneous material. It is also contended that the process of election having been found to be vitiated where five of the Directors were found to have been prevented from filing nomination for the post of office bearers, the election authority rightly found the whole election process, as vitiated and therefore, direction given for conducting fresh election was justified to ensure free and fair elections. 8. Mr. K. Ramakrishna Reddy and Mr. Vedula Venkataramana, learned senior counsel, however, placed reliance upon the decision of a Division Bench of this Court in WA.No.238 of 2013 and batch dated 26.04.2013 wherein the Division Bench, to which one of us (VVAJ) is a party, had considered Rule 22-C of the Rules under which power of postponement of election is reserved with the Government or with the election authority. They also contended that the postponement of election is contrary to Rule 22-C(1)(b) of the Rules and in any case, the election authority has not taken into consideration the report of the election officer wherein 13 Directors, who had attended the meeting, unanimously confirmed that they had attended and voted in a voluntary and free manner without any force from anybody. The written statement of the said 13 elected members was sufficient to conclude that there was no substance in the complaint that there is any fraud or force in conduct of elections. 9. We have considered the aforesaid submissions. 10. Before dealing with the same, it would be appropriate to notice that the very same Rule 22-C was considered by the Division Bench in WA.No.238 of 2013 and batch, referred to above. 9. We have considered the aforesaid submissions. 10. Before dealing with the same, it would be appropriate to notice that the very same Rule 22-C was considered by the Division Bench in WA.No.238 of 2013 and batch, referred to above. The relevant portion of the said decision is extracted as under: "...It is also well settled that the election process which has commenced must be allowed to be completed without interdicting the same, however the Government, while exercising the power under Rule 22-C(1)(iii), apparently interfered with the election process without any justification. It is also noteworthy that the power under Rule 22-C(1) refers to three contingencies, viz., (i) Break down of law and order affecting peaceful and lawful conduct of elections; (ii) Any natural calamity that prevents the conduct of elections particularly participation of voters; and (iii) Where there is reasonable apprehension that voters will not be allowed to vote frankly and freely. In all these matters Government exercised the power under contingency No.(iii) aforesaid that the voters will not be allowed to vote frankly and freely...Further under Rule 22-C(1)(b), it is provided that the postponement shall be done only by issue of an order which shall specify the grounds of postponement. It is, therefore, mandatory that when the Government exercises such power to postpone elections, it must not only give reasons in support thereof, but such reasons must also stand to the test of scrutiny before a Court of law..." 11. Further, the report of the election officer, who was on the spot and who conducted the meeting, very significantly states as follows. The relevant portion of the report, extracted below, shows that all the 13 members present have confirmed in a written statement that they have voluntarily attended the meeting and participated in the meeting freely and frankly without any inside or outside force or influence. "Accordingly, I have completed the election of (19) M.C. members leaving (2) SC unfilled vacancies as on 18.2.2012. I have issued Form-XIII notice fixing the M.C. meeting on 19.2.2013 with time schedule from 8.00 am to 9.00 am fro co-option of (2) unfilled SC vacancies and election of Office Bearers from 9.00 am onwards. I have arranged required police bando bust also for this election process. I have issued Form-XIII notice fixing the M.C. meeting on 19.2.2013 with time schedule from 8.00 am to 9.00 am fro co-option of (2) unfilled SC vacancies and election of Office Bearers from 9.00 am onwards. I have arranged required police bando bust also for this election process. I further submit that on 19-02-2012, I have made all arrangements for conduct of M.C. meeting of WDCCB for co-option of unfilled vacancies and election of office bearers. At the start of the meting I have verified the attendance of M.C. members and found that as many as (13) members attended the meeting. As the number of M.C. members attended constituted quorum for the meeting, I have started the process of co-option. The M.C. members present have proposed and unanimously resolved to co-opt the following two SC members of Managing Committees of members PACSs of DCCB: 1. Smt. Erra Janaki, M.C. member of PACS, WArdhannapet 2. Sri Chirra Uppalamma, M.C. member of PACS, Rayaprthy On completion of co-option, I have started the process of election of Office Bearers from 9.00 am onwards. During the hours from 9.00 am to 11.00 am, the following nominations have been filed by the elected M.C. members of DCCB. For the post of President: 1. Sri Janga Rahava Reddy, M.C. member For the post of Vice - President: 1. Sri Rapolu Pullaiah, M.C. Member ... In this regard, I further submit that, at 11.35 am, Sri Donthi Madhava Reddy, one of the elected directors have entered the meeting hall and filed a petition alleging that the elected directors of his party have been kidnapped under threat and made them to attend the meeting forcibly. Whereas, on enquiry with the members present in the meeting, (13) M.C. members out of (15) members attended have given a written statement at 12.20 pm stating that they have voluntarily attended the meeting and participating in the meeting freely and frankly without any inside or outside force or influence. By this time I have completed the process of co-option and election of office bearers to the stage of display of valid nominations after scrutiny Form-IV and proceeding with the election schedule as notified. By this time I have completed the process of co-option and election of office bearers to the stage of display of valid nominations after scrutiny Form-IV and proceeding with the election schedule as notified. The petition filed by Sri Donthi Madhava Reddy and the written statement of (13) members participated in the meeting are enclosed herewith for ready reference." Though the learned counsel for the appellants has shown some contradictions with reference to the display of forms, there was no controversy with regard to the material part of the report extracted above. In our view, the crucial part of the report, being the para referring to the written statement of 13 members present and confirming that they have voluntarily attended and voted, ought to have been given due weightage by the election authority. It is also evident that majority of the members having confirmed that they have voluntarily attended and voted, the same ought to have been taken as sufficient for the purpose of satisfaction of the election authority. 12. However, the order of the election authority canceling the election process does not show that the report of the election officer is taken into consideration by the said authority and on the contrary, the report of the District Collector is the sole basis for passing of the order of cancellation of election process and for directly holding of fresh election. Learned single Judge, on examination, found that the District Collect had no role to play in the matter of elections of the District Cooperative Central Bank and as per Section 31(3)(a) of the Act read with Rule 22(2)(a) of the Rules and it is the Registrar of Cooperative Societies, who is the election authority. Since the District Collector is not one of the designated authorities under the Act so far as the District Cooperative Central Bank is concerned, the learned single Judge rightly found that calling for report from the District Collector and making the said report as basis of the order by the election authority vitiates the order of the election authority. 13. Learned Government Pleader very fairly stated that the legal position with regard to the role of the District Collector and the Registrar of Cooperative Societies in respect of different categories of cooperative societies in terms of Rule 22(2)(a) of the Rules, as held by the learned single Judge, is not in dispute. 14. 13. Learned Government Pleader very fairly stated that the legal position with regard to the role of the District Collector and the Registrar of Cooperative Societies in respect of different categories of cooperative societies in terms of Rule 22(2)(a) of the Rules, as held by the learned single Judge, is not in dispute. 14. In that view of the matter, it is evident that the election authority has taken into consideration the report of the District Collector, which is an extraneous authority, so far as elections to the District Co-operative Central Bank is concerned. At the same time, the election authority while passing the impugned order has excluded from consideration the report of the election officer, particularly the relevant portion, which is extracted above and thereby, has excluded from consideration the most relevant material. In our opinion, the impugned order dated 25.02.2013 passed by the election authority is clearly vitiated on the aforesaid grounds. In order to restate the legal position settled by several decisions of the Supreme Court, it is appropriate to notice the relevant passages from the following decisions: Relevant para 11 of the decision of the Supreme Court in COMMISSIONER OF INCOME TAX, BOMBAY v. MAHINDRA AND MAHINDRA LIMITED (1983) 4 SCC 392 ), is extracted hereunder: "11. By now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals Ltd. v. Company Law Board [1966] Suppl. S.C.R. 311 case on the point. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Shalini Soni v. Union of India [ (1980) 4 SCC 544 ] has observed thus: "It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote." Suffice it to say that the following passage appearing at pages 285-86 in Prof, de Smith's treatise Judicial Review of Administrative Action (4th Edn.) succinctly summarises the several principles formulated by the Courts in that behalf thus : The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular, manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act [and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidity contained within each category." Relevant paras 15 and 16 of the decision of the Supreme Court in CHINGLEPUT BOTTLERS v. MAJESTIC BOTTLING COMPANY (1984) 3 SCC 258 ), are extracted hereunder: "15. Nor, is it possible to differentiate with precision the grounds of invalidity contained within each category." Relevant paras 15 and 16 of the decision of the Supreme Court in CHINGLEPUT BOTTLERS v. MAJESTIC BOTTLING COMPANY (1984) 3 SCC 258 ), are extracted hereunder: "15. It is true that sometimes it is prudent to couple a writ of certiorari with a writ of mandamus to control the exercise of discretionary power. The following illuminating passages from de Smith's Judicial Review of Administrative Action, 4th edn. at pp.341 and 544 pithily sum up the function of a writ of mandamus: It is now open to a court when granting certiorari to remit the matter to the authority with a direction to reconsider and to decide in accordance with the findings of the court. Apart from this, the role of the courts is limited to ensuring that direction has been exercised according to law. If, therefore, a party aggrieved by the exercise of discretionary power seeks an order of mandamus to compel the authority to determine the matter on the basis legally relevant considerations, the proper form of the mandamus will be one to hear and determine according to law; though by holding inadmissible the considerations on which the original decision was based the court may indirectly indicate the particular manner in which the discretion ought to be exercised. In practice the frontier between control of legality and control of the actual exercise of discretion remains indeterminate, for the courts are sometimes observed to cross the boundaries that they have set to their own jurisdiction. The duty to observe these basic principles of legality in exercising a discretion is unlike the "duty" to apply the law correctly to findings of fact, prima facie enforceable by mandamus. Hence where an authority has misconceived or misapplied its discretionary powers by exercising them for an improper purpose, or capriciously, or on the basis of irrelevant considerations or without regard to relevant considerations, it will be deemed to have failed to exercise its discretion or jurisdiction at all or to have failed to hear and determine according to law, and mandamus may issue to compel it to act in accordance with the law. 16. Professor H.W.R. Wade in his Administrative Law, 5th edn. at p.638 also defines the purpose of a writ of mandamus in these words: Mandamus is often used as an adjunct to certiorari. 16. Professor H.W.R. Wade in his Administrative Law, 5th edn. at p.638 also defines the purpose of a writ of mandamus in these words: Mandamus is often used as an adjunct to certiorari. If a tribunal or authority acts in a matter where it has no power to act at all, certiorari will quash the decision and prohibition will prevent further unlawful proceedings. If there is power to act, but the power is abused (as by breach of natural justice or error on the face of the record), certiorari will quash and mandamus may issue simultaneously to require a proper rehearing. An example is Board of Education Rice [1911] AC 179 cited elsewhere ; the Board's decision was ultra vires since they had addressed their minds to the wrong question ; consequently it was quashed by certiorari and the Board were commanded by mandamus to determine the matter according to law, i.e. within the limits indicated by the House of Lords." 15. Both the impugned orders were accordingly not sustainable for the reasons given above. It is also to be kept in mind that if the complaint of one of the directors that five of the elected directors were not allowed to participate in the election has any basis and substance, the remedy of such directors would clearly be to approach the election tribunal under Section 61 (3) and (4) of the Act, which provides for a specific remedy for resolution of all election disputes. In the Division Bench judgment in WA.No.238 of 2013 and batch, one of us (VVAJ), had considered the said aspect and the following passage from the said judgment would be apt to be reproduced here: "14. On the face of it, if a grievance arising out of voters list is either with regard to illegal exclusion or inclusion of a voter therein, Section 61(3) of the Act provides for remedy for all such disputes before appropriate Election Tribunal and as per the mandate of sub-section (4) thereof extracted above, such dispute will be entertained only after declaration of result of the election. In other words interdiction of the election process on account of any such dispute is not permissible in view of the object, purpose and scheme under Section 61 of the Act and particularly subsection (4) thereof. In other words interdiction of the election process on account of any such dispute is not permissible in view of the object, purpose and scheme under Section 61 of the Act and particularly subsection (4) thereof. Thus by exercising power under Rule 22-C of the Rules, the mandate of Section 61(4) of the Act cannot be defeated." 16. So far as the other ancillary ground as to whether the first of the impugned orders postponing the election is valid is concerned, the answer is clearly provided by Rule 22-C(1)(b) of the Rules, which is quoted hereunder for convenience: "22-C(1)(b). The postponement shall be done only by issue of an order which shall specify the grounds of postponement. After such postponement the election process shall be recommenced when the conditions become conducive for re-commencing of election, by issue of an order by the Authority that has postponed the elections. The process will re-commence from the stage at which it was obstructed or interrupted." 17. Firstly, there is no order passed indicating the reason for postponement of election and secondly, the first of the impugned orders merely refers to the order passed by the election authority but no such order is on record. The aforesaid extracted Rule also mandates that even if an election is postponed on any of the specified grounds under Rule 22-C(1) of the Rules, the process of election must recommence from the stage where it had stopped. Obviously, in the present case, as per the report of the election officer, the election process was interrupted by the telephonic call from the election authority at the stage of displaying of valid nominations to the post of office bearers. Under Rule 22-C(1)(b), quoted above, therefore, even if election is interrupted, it must recommence only from that stage onwards. In that view of the mater, there is no justification in the order of the election authority directing cancellation of the whole election process and further direction conducting of election afresh. 18. We, therefore, agree with the findings of the learned single Judge and we find no merit in the appeals. Consequently, within a period of two (2) weeks from today, the election authority shall direct the election officer to recommence the election process from the stage where it was interrupted and complete the same in accordance with law. The writ appeals are accordingly dismissed. Consequently, within a period of two (2) weeks from today, the election authority shall direct the election officer to recommence the election process from the stage where it was interrupted and complete the same in accordance with law. The writ appeals are accordingly dismissed. The miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.