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2023 DIGILAW 420 (TS)

Gundarpu Kiran Kumar v. State of Telangana

2023-06-08

C.V.BHASKAR REDDY

body2023
ORDER: 1. The present writ petition has been filed seeking to issue a Writ of Mandamus declaring the election notification issued by the Additional Registrar/State Cooperative Election Authority (FAC), Telangana, Hyderabad, respondent No.3 herein, vide proceedings in Rc.No.765/BDD/SCEA/2022 dated 14.03.2022, as illegal, arbitrary and contrary to the provisions of Telangana Cooperative Societies Act, 1964 (for short “the Act”). 2. The petitioner claims to be the Member of respondent No.5/society which has been registered under the provisions of the Act vide Registration No.892/TEE. As per the bye-laws of respondent No.5/society, initially its area of operation was within the jurisdiction of Dugnepalli Gram Panchayat. In view of creation of new panchayats in the State of Telangana, Dugnepalli Gram Panchayat has been bifurcated into three Gram Panchayats viz., Dugnepalli Gram Panchayat, T. Kothagudem Gram Panchayat and Chedharmla Gram Panchayat. So far as T.Kothagudem Gram Panchayat is concerned, a separate society was registered under the provisions of the Act and commenced its activities as per the provisions of the Act and the Rules made thereunder i.e., the Telangana Cooperative Societies Rules, 1964 (for short “the Rules”) and out of the original members existing at the time of registration of respondent No.5/society, 23 members have been transferred to newly created T.Kothagudem society. The area of operation of the said society was notified as the Scheduled Area. The petitioner claims that he belongs to Scheduled Tribe community. Since no elections were conducted to respondent No.5/society, an Ad-hoc Committee was nominated for running the affairs of the society. It is the case of the petitioner that respondent No.3 has issued impugned notification vide proceedings in Rc.No.765/BDD/SCEA/2022 dated 14.03.2022 appointing respondent No.4 as election officer for conducting elections to the managing committee of respondent No.5/society and also issuing election schedule fixing the date of nominations as 21.03.2022 and the date of conducting elections as 30.03.2022. 3. The contention of the petitioner is that prior to issuance of the impugned election notification and the schedule, the respondents have not published the draft voters list. It is mandatory that before publication of the voters list the draft voters list has to be published for conducting elections, but such procedure has not been followed by the respondents for conducting elections to respondent No.5/society. It is mandatory that before publication of the voters list the draft voters list has to be published for conducting elections, but such procedure has not been followed by the respondents for conducting elections to respondent No.5/society. It is the further contention of the petitioner that in view of bifurcation of Dugnepalli Gram Panchayat, where initially respondent No.5/society was having operational jurisdiction and in view of subsequent creation of the new society with 23 members and transferring of 23 members of respondent No.5/society into newly formed society and change of its members, it is mandatory on the part of respondent Nos.3 and 4 to prepare draft voters list and publish the same before conducting elections. The grievance of the petitioner is that since the newly transferred members are no more members of respondent No.5/society and since respondent No.3 has straight away issued notification for conducting elections to the managing committee of respondent No.5/society, nearly 45 ineligible members are now allowed to participate in the election to respondent No.5/society, as such issuance of impugned election notification fixing the schedule without publishing the draft voters list and calling objections is contrary to Rule 22(6) of the Rules and prayed this Court to declare the election notification as illegal, arbitrary and contrary to Rules 22(1) read with Rule 22(6) of the Rules and to consequently prayed to set aside the same. 4. 4. A counter affidavit has been filed by respondent No.2 inter alia stating that elections were notified by the election authority i.e., respondent No.3 by appointing respondent No.4 as Election Officer to fill seven (7) posts of managing committee of respondent No.5/society; respondent No.4 being election officer displayed the election notification on 21.03.2022 and also issued notice in Form-I on 17.03.2022 which contained election schedule/programme along with list of voters; the said notice was displayed on 17.03.2022 on the notice board of the society and also on notice boards of Gram Panchayat Office, Dugnepalli Mandal Revenue Office, Pinapaka, Mandal Development Office, Pinapaka, District Cooperative Office, Bhadradri-Kothagudem and office of PACS, Pinapaka; the person-in-charge committee of respondent No.5/society prepared and published a list of members eligible to vote on the notice board of the society and Gram Panchayat of Dugnepalli on 02.11.2021; claims and objections were also invited from the members of the society and no objections were received by the person-in-charge committee; the proposal for conduct of elections to the managing committee were sent to respondent No.2 vide proceedings in Rc.No.2037/29021-C dated 02.03.2022 together with list of members eligible to vote; respondent No.2 in turn forward the proposal along with approved eligible voters list to respondent No.3 whereupon respondent No.3 issued orders notifying the elections; the entire exercise was completed in conformity with Sub-rules (1), (2), (3) and (6) of Rule 22 of the Rules. 5. 5. It is further stated in the counter affidavit that the writ petition has been filed mainly on two allegations; the first allegation is that the list of eligible voters included the names of 23 members who were members of respondent No.5 society but transferred to the newly formed society of T.Kothagudem, whereas the second allegation is that the said list of voters also included 22 members belonging to Dugnepalli Village (area of operation of respondent No.5 society) who were transferred and took membership of newly registered society of T.Kothagudem; since voters list has been prepared after considering the objections, if any ineligible member has participated in the election poll will only be known after conducting the elections; according to the published and approved voters list, total 323 members are eligible to vote in the elections; even before elections are conducted, it is not possible to decide whether any ineligible members have participated in the elections or not; since voters list has been prepared duly following the procedure prescribed under the Rules by issuing the necessary forms as prescribed, the petitioner is not having any right to say that the impugned election notification was issued without following the procedure. 6. It is further stated in the counter affidavit that since there is no interdicting orders for conducting elections, elections were conducted and total 14 candidates finally remained in the contest for the seven posts of the managing committee and they have accepted the result of the said committee by not questioning the results of the elections by filing petition under Section 61(3) of the Act and therefore, the petitioner is not having any locus to challenge the elections which were held in accordance with the procedure. As such, it is prayed that the writ petition as filed is not maintainable and the same is liable to be dismissed in limine. 7. Learned counsel for the petitioner contends that preparation of voters list with ineligible members would vitiate the entire election process, as such the elections conducted on 30.03.2022 are null and void. As such, it is prayed that the writ petition as filed is not maintainable and the same is liable to be dismissed in limine. 7. Learned counsel for the petitioner contends that preparation of voters list with ineligible members would vitiate the entire election process, as such the elections conducted on 30.03.2022 are null and void. He further contends that even though Rule 22(6)(a) of the Rules directs the incumbent managing committee to prepare and publish the list of eligible members to vote on the notice board of the society duly indicating the serial number, admission number/general number, date of admission, name of member, father’s name, village/locality etc., and Rule 26(6)(b) of the Rules prescribes that managing committee shall invite claims/objections from the members and thereafter it shall communicate the list of eligible members to vote to the Registrar for verification and approval as per Rule 22(6)(c), in this case the procedure as contemplated in the said Rules has not been followed by the election authority, and the voters list which has been approved by the election officer consisting of 323 members does not indicate the reasons as to why the 23 members who were allotted to the bifurcated society were not excluded from the voters list. Therefore, the elections conducted basing on the voters list prepared for total members is illegal. Learned counsel also contends that this Court while exercising powers under Article 226 of the Constitution of India, at pre-election stage, is always entitled to exercise its discretion and it is only after the elections are conducted, election petitions are maintainable and there is no bar invoking the jurisdiction of this Court questioning the election notification and as such the writ petition is maintainable. 8. Learned counsel for the petitioner relying upon the judgment of a learned Single Judge of this Court in W.P.Nos.14099 and 22864 of 2022 dated 05.01.2021, argued that the preparation of the list of voters is an intermediate stage in the process of election and the same does not debar the High Court from entertaining the petition under Article 226 of the Constitution of India challenging the validity of electoral roll. Further, learned counsel also urged that as Election Tribunal has no power to interfere with preparation of electoral roll, in such circumstances, only remedy left for questioning the electoral roll is writ petition and as such the present writ petition filed challenging the voters list is maintainable. The sum and substance of the arguments of learned counsel for the petitioner is that the breach of rule in preparation of electoral roll cannot be questioned in an election petition, and as such the writ petition filed challenging the preparation of electoral roll cannot be dismissed on the ground that the petitioner is having an alternative remedy of an election petition and prays this Court to allow the writ petition. 9. Per contra, learned counsel for the respondents argued strenuously that this Court has not granted any interim orders of stay either for preparation of voters list or for conducting of elections. In fact, this Court has directed that the elections may go on but withheld the results. Since elections have been conducted by following the procedure as per the schedule issued in the election notification, withholding the results amounts to violation of rights created in favour of the elected candidates. Once the elections have been conducted, this Court is not having any power under Article 226 of the Constitution of India either for withholding the results of the elections or for declaring the elections as null and void. The proper remedy available to the aggrieved party is only to file election petition before the Election Tribunal. Further it is also contended by the learned counsel that in view of withholding the results, results were not declared and therefore, the society is not in a position to function to fulfill its objects for which it is established under the Act, and the same is against the very concept of cooperative movement. 10. Heard the extensive submissions made by the learned counsel for the parties and perused the record. 11. Before going into the controversy whether the petitioner is entitled to question the election notification or the election schedule quick glance is necessary to examine the provisions of the Act and the Rules. 12. 10. Heard the extensive submissions made by the learned counsel for the parties and perused the record. 11. Before going into the controversy whether the petitioner is entitled to question the election notification or the election schedule quick glance is necessary to examine the provisions of the Act and the Rules. 12. Section 19 of the Act specifically states that an individual who attained majority and is of sound mind and who belongs to a class of persons, if any, for whom the society is formed as per its byelaws and who paid the minimum share capital prescribed by the Registrar from time to time and who possesses such qualifications specified in the bye-laws is entitled for membership. Section 25 of the Act states that every such member, subject to the rules made in this behalf, shall have one vote in the affairs of the society and shall exercise his vote in person. Section 25(1-A) of the Act, a member of society shall be eligible to exercise the right to vote only if he contributes a minimum share capital and conducts minimum business transaction and he is a member of society for continuous period of one year or more as may be prescribed and subject to other conditions. Further, Rule 22(6) of the Rules specifically deals with voters list; Rule 22(8A) demonstrates issue of election notification and appointment of election officer; and Rule 22(8B) deals with powers of the election officer in adopting the election procedure. 13. In the present case, respondent No.3 i.e., the Additional Registrar/State Cooperative Election Authority being the competent authority under the Rules has issued the impugned election notification dated 14.03.2022 for conducting elections to respondent No.5/society and the schedule thereof. The dispute in the present case is with regard to preparation of the draft voters list or preparation of voters list by the election authority admitting ineligible members as members of respondent No.5/society to participate in the elections notified in the said notification. 14. In catena of judgments, this Court and Apex Court have decided the scope of judicial review powers in election related disputes. In Boddula Krishnaiah vs. State Election Commission, A.P., (1996) 3 SCC 416 , the Apex Court while laying down the principle of law in interfering with elections matters, held as under:- "11. 14. In catena of judgments, this Court and Apex Court have decided the scope of judicial review powers in election related disputes. In Boddula Krishnaiah vs. State Election Commission, A.P., (1996) 3 SCC 416 , the Apex Court while laying down the principle of law in interfering with elections matters, 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. They are free, as held earlier, to seek remedy by way of an election petition as provided in the Act and the Rules." 15. The Apex Court in Bharatiya Janata Party, West Bengal vs. State of West Bengal, (2018) 5 SCC 365 while re-considering the judgment and principles of law laid down in Boddula Krishnaiah’s case (supra) reiterated the principle of law in exercising judicial review powers once the election process is set in motion, which reads as under:- “11. We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. In view of the decision of this Court, in the case of Bodula Krishnaiah (supra) wherein it was held that once the election process has been set in motion, the Court ought not to interfere, we are not inclined to interfere. However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notification dated 05.04.2018 issued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nomination papers.” 16. It is settled principle of law that once election process is set in motion, the High Court should not interfere and stall the elections and all issues relating to elections including the drawing up voter list is part of election process. A remedy to a person aggrieved by any aspect relating to election is only by filing election petition and remedy of judicial review under Article 226 of the Constitution of India is not available, as the said remedy is only available to question on the grounds of perversity, irregularity, irrationality, want of power to take a decision and the procedural irregularity. It is well settled that except on the above grounds, the power of judicial review is not available against administrative decisions nor the administrative decisions are called for any interference in exercise of judicial review power in the absence of the grounds referred supra. It is well settled in catena of judgments rendered by this Court as well as Apex Court and it is the consistent view of the Constitutional Courts not to interdict with the election process, once such process has already begun by issuing of the notification. 17. It is well settled in catena of judgments rendered by this Court as well as Apex Court and it is the consistent view of the Constitutional Courts not to interdict with the election process, once such process has already begun by issuing of the notification. 17. In the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509 , the Apex Court held as under:- “A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against provisional list of voters, consideration of the objection by the Collector and finalizing the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters’ list, decision on the objections by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and the Rules, the preparation of voters’ list must be held to be part of the election process for constituting the Managing Committee of a specified society. In Someshwar Sahakari Sakhar Karkhana Ltd. Vs. Shriniwas Patil, Collector, (1992) 1 Mah LJ 883, it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the Managing Committee of a specified society is an intermediate stage in the process fo the election. Similar view was taken in Shivnarayan Amarchand Paliwal vs. Vasantrao Vithalrao Gurjar, (1992) 2 Mah LJ 1052. 18. The Hon’ble Supreme Court while considering the maintainability of the writ petition under Article 226 of the Constitution of India, when a challenge was made to the elections to the cooperative society, held in paras 12 and 13 as under:- “12. Similar view was taken in Shivnarayan Amarchand Paliwal vs. Vasantrao Vithalrao Gurjar, (1992) 2 Mah LJ 1052. 18. The Hon’ble Supreme Court while considering the maintainability of the writ petition under Article 226 of the Constitution of India, when a challenge was made to the elections to the cooperative society, held in paras 12 and 13 as under:- “12. In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal. 13. In that view of the matter, we are in agreement with the view taken by the High Court that the appellant having an alternative remedy, the writ petition deserved dismissal.” 19. Thus, it is the consistent view of Constitutional Courts that once election process is set in motion, the High Court should not interfere with the election process to the extent of stalling the elections including declaration of results. In election matters, no remedy is provided at intermediate stage and the only remedy available to the aggrieved party is to file election petition. Since admittedly in this case the impugned election notification was issued and schedule was also fixed, the remedy available to the petitioner is to question the said elections in a properly constituted election petition. Further, admittedly, in the present case, this Court has allowed the elections to go on except withholding the results. 20. Viewed from any angle, when a challenge is made to the voters list, withholding of elections at initial process stage is not warranted that too exercising extraordinary jurisdiction under Article 226 of the Constitution of India in the absence of any legal infirmities in law. 21. 20. Viewed from any angle, when a challenge is made to the voters list, withholding of elections at initial process stage is not warranted that too exercising extraordinary jurisdiction under Article 226 of the Constitution of India in the absence of any legal infirmities in law. 21. In view of the above, the present writ petition fails and the same is accordingly dismissed. As a sequel, miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.