Surthi Venkatesh, S/o Late S Satyanarayana v. Election Committee, Sri Somavamsha Shasatrarjuna Kshatriya Mutually Aided Co-Operative Thrift Society Ltd. Hyderabad
2021-02-04
P.NAVEEN RAO
body2021
DigiLaw.ai
ORDER: Heard learned counsel for petitioner and learned Government Pleader for Cooperation. 2. Petitioner was Ex-Member of Sri Somavamsha Shasatrarjuna Kshatriya Mutually Aided Cooperative Thrift Society Limited, Hyderabad (second respondent herein). His membership was terminated by resolution dated 22.2.2020. Challenging the said termination, petitioner filed W P No. 15890 of 2020 which is pending consideration before this Court. Election notice was issued on 5.1.2021 to conduct elections to elect two Directors who are retiring by rotation. As per the schedule announced, nomination forms were available from 11.1.2021 to 20.1.2021; nominations were to be filed from 18.1.2021 to 22.1.2021 and election is scheduled to be held on 7.2.2021. One of the conditions imposed to contest the elections is that person must be a shareholder/member whose name is on the members’ rolls of the society as on 31.12.2020. As petitioner was terminated from membership, this clause is staring at him. He therefore represented to the Chairman of Election Committee on 16.1.2021 requesting him to permit him to file nominations as he is contesting the termination in writ petition pending consideration before the High Court and likely to be taken up. Said request of the writ petitioner was rejected vide intimation dated 20.1.2021 informing the petitioner that since he cease to be a member of the society and in view of first of the terms and conditions, he is not eligible to contest and therefore the question of permitting him to file nominations, does not arise. The said decision and election notification is assailed in this writ petition. 3. Extensive submissions are made by learned counsel for petitioner to persuade the Court to stop the election process or to direct the respondents to receive the nomination of the petitioner and to permit him to contest the election. Learned counsel for petitioner sought to contend that the termination of his membership of the society is ex-facie illegal as elementary principles required to be observed before terminating the membership were not followed, in as much as no notice or opportunity was given to the petitioner as admitted by second respondent management. That being so, as termination has civil and evil consequences, it is ex-facie illegal and unsustainable. Therefore, petitioner is deemed to be a member of the second respondent society and thus entitled to contest the election. Depriving the petitioner to contest the election would be offending Article 21 of the Constitution of India.
That being so, as termination has civil and evil consequences, it is ex-facie illegal and unsustainable. Therefore, petitioner is deemed to be a member of the second respondent society and thus entitled to contest the election. Depriving the petitioner to contest the election would be offending Article 21 of the Constitution of India. He therefore pleads that it is a fit case for this Court to exercise extraordinary jurisdiction under Article 226 of the Constitution of India and to direct the respondents to afford to petitioner opportunity to contest in the elections. 4. Two significant aspects which have bearing on the issue are relevant to be noticed. Firstly, process of election to elect two Directors in place of retiring Directors by rotation was set in motion on 5.1.2021 and elections are scheduled to be held on 7.2.2021; and secondly petitioner was not permitted to file nomination having regard to the first of the terms and conditions of the election notification and the last date for submission of nominations was over on 22.2.2021. 5. In the above backdrop, the issue for consideration is whether the writ petitioner is entitled to seek mandamus to direct the respondents to permit him to contest the elections after the election process is set in motion ?. 6. I have given my anxious consideration to the submissions of the learned counsel for petitioner. 7. Sections 23, Elections:--Notwithstanding anything contained in this Act, rules and bye-laws of the society, the State Co-operative Election Authority constituted under the provisions of the Telangana Co-operative Societies Act, shall be vested with the authority for superintendence, direction and control of the preparation of electoral rolls and conduct of all elections to the Board of Directors: Directors: Provided that rule 22 of Telangana Co-operative Societies Rules, shall mutatis mutandis apply to the extent it is not inconsistent with this Act for all types of Co-operative Societies registered under this Act: Provided further that, the State Co-operative Election Authority referred to under sub-section(1) above may issue guidelines otherwise laying down the procedure for conduct of elections from time to time. (2) The Registrar of Co-operative Societies shall deploy the supporting staff to the State Co-operative Election Authority as may be prescribed, to assist the Authority in conduct of elections.
(2) The Registrar of Co-operative Societies shall deploy the supporting staff to the State Co-operative Election Authority as may be prescribed, to assist the Authority in conduct of elections. (3) Provided further that the election of a Board shall be conducted before the expiry of the term of the Board so as to ensure that the newly elected members of the Board assume office immediately on the expiry of the term of the outgoing Board. (4) Registrar shall appoint an Ad-hoc Board immediately after registration of a society under this Act which shall function till the first elected board assumes office or for a period not exceeding 3 months whichever is earlier. and 37, 37. Settlement of dispute:--(1) If any dispute arises touching the constitution, management or business of a Co-operative Society, and matters connected therewith or incidental thereto:- (a) among members, past members or a persons claiming through members, past members and deceased members; or (b) between members, past member or a person claiming through a member, past member or deceased member and the Co-operative Society, its Board, Director, office-bearer or liquidator, past or present; or(c) between the Co-operative Society or its Board and any past Board, Director, office bearer, or the Nominee, Heirs, or Legal Representatives of any deceased Director, deceased officer, of the Co-operative Society; or(d)between the Co-operative Society and any other Co-operative Society; or(e)between the promoters of a Co-operative Society and the Registrar, or a Co-operative Society and the Registrar; or(f)between a Co-operative Society and liquidator of another Co-operative Society, or between the liquidators of two or more Cooperative Societies: Such disputes may be referred to the Registrar for decision. An appeal on the decision of the Registrar vests with the Co-operative Tribunal: Provided that no dispute shall be referred under this section to the Registrar unless the disputing parties exhausted all remedies that may be available in the bye-laws for the settlement of disputes. of Telangana Mutually Aided Co-operative Societies Act 1995 and Rule 22 of the Telangana Cooperative Societies Rules, 1964 are relevant for the present. 8. Section 23 deals with elections. It adopts Rule 22 of the Telangana Cooperative Societies Rules to deal with all aspects of the elections to the Board of Directors. Section 37 extensively deals with settlement of disputes on various aspects including election related disputes. Sub Section 2 opens with “Any dispute relating to elections…”.
8. Section 23 deals with elections. It adopts Rule 22 of the Telangana Cooperative Societies Rules to deal with all aspects of the elections to the Board of Directors. Section 37 extensively deals with settlement of disputes on various aspects including election related disputes. Sub Section 2 opens with “Any dispute relating to elections…”. This has a very wide import and encompasses all aspects of election including issuing election notification, issuing nomination papers, filing of nominations, consideration of nominations and declaring the nominations, as valid or invalid. It requires referring the election dispute to the Cooperative Tribunal. Rule 22 of the 1964 Rules is exhaustive provision which deals with all aspects of how to conduct elections to the Board of Directors of a society. 9. A brief recapitulation of the principle of law on the scope of judicial review in election related disputes is noted hereunder. 10. Boddula Krishnaiah and another vs. State Election Commission, A.P. and others, (1996) 2 SCC 416 is on identical facts as in this case. On the scope of interference by the High Court in election matters, the Hon’ble Supreme Court held as under: “11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal. 12. Under these circumstances, we hold that the order passed by the High Court is not correct in law in giving direction not to declare the result of the election or to conduct fresh poll for 20 persons, though the writ petition is maintainable. The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election.
The High Court, pending writ petition, would not be justified in issuing direction to stall the election process. It is made clear that though we have held that the respondents are not entitled to the relief by interim order, this order does not preclude any candidate including defeated candidate from canvassing the correctness of the election. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules.” 11. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra and others, (2001) 8 SCC 509 , the Hon’ble Supreme Court considered the view expressed by the Hon’ble Supreme Court in Bar Council of India (supra). The Hon’ble Supreme Court observed: “11. In the aforesaid case, this Court held that a writ petition under Article 226 of the Constitution should not be rejected on account of an alternative remedy by way of election petition where, firstly, the challenge is not a ground under the Act or the Rules for filing an election petition and, secondly, where the validity of a rule is challenged being ultra vires and invalid. It is true that a tribunal being a creature of an Act or the Rules has a limited jurisdiction and it is not open to a tribunal to decide the validity of the Act and the Rules. But, that is not the case here and, therefore, the decision in the case of Bar Council of India v. Surjeet Singh [ (1980) 4 SCC 211 ] is of no help to the case of the appellants. In the case of Ramchandra Ganpat Shinde v. State of Maharashtra [ (1993) 4 SCC 216 ] the parties to a writ petition obtained a collusive order by applying fraud on the court and such an order was made the basis of the election. In that context, it was held that so long as the order of the High Court continues, the Tribunal would be bound by that order of the High Court and, therefore, the writ petition was maintainable and the same cannot be thrown out on the ground of an alternative remedy. Again, that is not the case of the appellants and, therefore, the same is distinguishable.
Again, that is not the case of the appellants and, therefore, the same is distinguishable. In Shreewant Kumar Choudhary v. Baidyanath Panjiar [ (1973) 1 SCC 95 ] it was held that it was not open to the Tribunal to go behind the entry in an electoral roll. This was in the context of the provisions of the Representation of the People Acts, 1950 and 1951. It may be borne in mind that there is a distinction between the scheme of the provisions of the Representation of the People Act, 1950 and the Representation of the People Act, 1951. The Representation of the People Act, 1950 provides for the delimitation of constituencies and allocation of seats for purposes of election to the House of the People and the legislatures of States and preparation of the electoral roll, whereas, the Representation of the People Act, 1951 provides for conduct of election. Under Section 100 of the Representation of the People Act, 1951, one of the grounds amongst others is that an election can be challenged where there is non-compliance with the provisions of the Constitution or of the said Act and the Rules or orders made thereunder — meaning thereby that breach of the Representation of the People Act, 1950 cannot be called in question in an election petition filed under the 1951 Act. In that view of the matter, the decision relied upon by the appellants is distinguishable.” 12. Reiterating the principle in Boddula Krishnaiah (supra), in Bharatiya Janata Party, West Bengal vs. State of West Bengal and others, (2018) 5 SCC 365 , the Supreme Court declined to interfere in the election process holding that on issuing election notification to conduct panchayat elections, the election process was set in motion and from that stage Court cannot interfere. 13. It is settled principle of law that once election process is set in motion Courts of law should not interject the process. All issues relating to elections, including drawing up voters list is part of election process. A person aggrieved by any aspect relating to elections has to wait till the entire process is completed and results are announced and can agitate only in the form of election dispute. It is the consistent view of this Court that once election process is set in motion, the High Court should not interfere and stall the elections.
A person aggrieved by any aspect relating to elections has to wait till the entire process is completed and results are announced and can agitate only in the form of election dispute. It is the consistent view of this Court that once election process is set in motion, the High Court should not interfere and stall the elections. In election matters, no remedy is provided at intermediate stage and only remedy is Election Petition after the election is over. [Kalla Ramakrishna Vs State Election Commission: 2005 (1) APLJ 11 (HC)(FB); Prattipati Bhagyamma Vs Election officer : 2005 (6) ALD 350; Dhulipaka Narendra Kumar Vs A.P Coop Tribunal: (2011) 1 ALD 292 ]. 14. The view of this Court is in accord with the opinion expressed by the Hon’ble Supreme Court in catena of cases. Thus, once an election notification is issued, all the intermediary exercise forming part of election process can be questioned only after the elections are over and results are announced. Every step from issuing election notification till announcement of result of election forms part of ‘election’. In the case on hand, petitioner was not permitted to submit his nomination to contest the election. ‘The rainbow of operations, covered by the compendious expression ‘election’, thus commences from the initial notification and culminates in the declaration of the return of a candidate’. [Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 : AIR 1978 SC 851 ] 15. As of now the petitioner is not a member of the second respondent society. The manner of termination of the membership of the petitioner is pending consideration in the writ petition no.15890 of 2020. Having regard to the consistent view taken by the Constitutional Courts it is not permissible to interdict the election process on the premise that petitioner is most likely to succeed in the writ petition no. 15890 of 2020 against termination of his membership from the second respondent society and therefore he is entitled to contest the election but was illegally denied. It is premature to assume as such. Even assuming that termination was illegal, it is no ground to stall the election process. I therefore, see no merit in the writ petition. 16. Accordingly, the writ petition is dismissed. No costs. Miscellaneous petitions, if any pending, are closed.