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2024 DIGILAW 509 (AP)

J. Peda Venkata Subbaiah v. State Of Andhra Pradesh

2024-05-03

V.SUJATHA

body2024
ORDER : This Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “….to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the Election Notice issued by the 5th respondent dt.01.09.2022 in pursuance of the Proceedings issued by the 2nd Respondent Vide R.C.No.Proc.No.Election.474/E/2020, dt.25.07.2022 contemplating to conduct election to the Managing Committee of the 6th respondent society on 09.09.2022 as illegal, arbitrary and contrary to Section 31 (2)(c) of the A.P.Cooperative Societies Act, 1964 and also pending W.P.No.4927 of 2022 before this Hon’ble Court and consequently set aside the Election Notice Dt.01.09.2022 issued by the 5th respondent and to pass....” 2. The petitioner herein submits that he is the elected president of the 6th respondent registered Fishermen Co-operative Society as per the election conducted on 29.09.2017 by the then out going Managing Committee as the said society is not an aided society as per Section 31(2)(c) of the A.P. Cooperative Societies Act, 1964. The term of the petitioner’s managing committee exists till 28.09.2022. While so, a group of 60 members have filed W.P.No.4927 of 2022 and have obtained ex-parte interim order on 24.02.2022 which reads as under: “…Accordingly, there shall be interim direction to the respondents 1 to 4 to take steps to appoint Person in Charge to the 5th respondent society as per the provisions of Section 32(7)(a)(i) of the Act. The respondents are further directed to lease fish tanks to the 5th respondent society to conduct fishing operations by the members of the society to eke out their livelihood.” 3. The main grievance of the petitioner is that since the 6th respondent society is an un-aided society, the official respondents and the Fisheries Department have no power to conduct election to the managing committee of the society though the elected committee term exists till 28.09.2022. But, however, the 5th respondent issued the impugned election notice on 01.09.2022 basing on the proceedings dated 25.07.2022 of the 2nd respondent contemplating to conduct election to the managing committee of the 6th respondent society on 09.09.2022, which is illegal, without jurisdiction and is contrary to Section 31(2)(c) of the A.P. Cooperative Societies, Act, 1967. But, however, the 5th respondent issued the impugned election notice on 01.09.2022 basing on the proceedings dated 25.07.2022 of the 2nd respondent contemplating to conduct election to the managing committee of the 6th respondent society on 09.09.2022, which is illegal, without jurisdiction and is contrary to Section 31(2)(c) of the A.P. Cooperative Societies, Act, 1967. It is the further case of the petitioner that subsequent to issuance of draft voters list on 16.08.2022, the 5th respondent has called for objections from the members of the society, pursuant to which the petitioner and few others submitted their objections which were also acknowledged by the 5th respondent vide letter dated 23.08.2022, but, however, the same were not considered and no order has been passed by the 5th respondent duly providing an opportunity to the petitioner herein and others; which amounts to violation of principles of natural justice. Aggrieved by the impugned election notice dated 01.09.2022 which was issued contrary to the Section 31(2)(c) of the A.P. Cooperative Societies, Act, 1967, the present writ petition is filed. 4. When the writ petition came up for admission on 07.09.2022, this Court has passed a detailed interim order which reads as under: “Learned counsel for the petitioner submits that the 6th respondent society is an un-aided society. Section 31(2)(b)(c) of the Andhra Pradesh Cooperative Societies Act, 1964, provides that with respect to the societies which are not receiving state aid, it shall be responsibility of the incumbent committee of such society to held election to the office of the members of the Committee. For better appreciation Section 31(2)(b)(c) of the Andhra Pradesh Cooperative Societies Act, 1964, is extracted herein under: (b) It shall be the duty of the Registrar to hold elections to the office of the members of the committee of a society which received State aid as specified in Section 43 of the Act before the expiry of their term. For better appreciation Section 31(2)(b)(c) of the Andhra Pradesh Cooperative Societies Act, 1964, is extracted herein under: (b) It shall be the duty of the Registrar to hold elections to the office of the members of the committee of a society which received State aid as specified in Section 43 of the Act before the expiry of their term. (c) 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: The learned counsel for the petitioner has drawn the attention of this Court to the Final Audit Report filed as Ex.P.2., wherein, it is mentioned that the society is an un-aided society, as such, issuing election Notification by the 5th respondent to conduct elections to the Managing Committee of the 6th respondent society is illegal. On the other hand, the learned Government Pleader for Fisheries contends, on relying the written instructions send by the Election Officer of the 6th respondent, wherein, it is stated that during the financial year 2018-19, 2 No's of 2 wheelers were sanctioned to the 6th respondent society under FDS Scheme with subsidy of 75% by the Government, as such the petitioner is an aided society. Hence, 5th respondent is empowered to issue election Notification to conduct election to the 6th respondent society. Except granting 2 No's of 2 wheelers under FDS Scheme during the financial year 2018-19 prior to that or after that there are no particulars in the written instructions with regard to granting aid to the petitioner's Society. Under these circumstances, this Court is unable to accept the contention of the learned Government Pleader that the petitioner’s Society is an aided society. On consideration of grant, the procedure provided under Section 43 of the Andhra Pradesh Cooperative Societies Act, 1964, with regard to the State aid to societies, in the considered opinion of this Court, financial aid is different from financial assistance. Considering the same, if the 6th respondent’s society is considered as un-aided society, to conduct elections to the 6th respondent society, the procedure provided under Section 31(2)(c) of the Andhra Pradesh Cooperative Societies Act, 1964, has to be followed. Considering the same, if the 6th respondent’s society is considered as un-aided society, to conduct elections to the 6th respondent society, the procedure provided under Section 31(2)(c) of the Andhra Pradesh Cooperative Societies Act, 1964, has to be followed. In view of the above legal provisions considered by this Court, the 5th respondent has no authority to issue the impugned election Notification dated 25.07.2022. The learned counsel for the petitioner placed reliance on the decision of the Hon’ble Apex Court in Pundlik V. State of Maharashtra and others reported in (2005)7 Supreme Court Page No.181, wherein it is held that where the voters’ list had been prepared on the basis of non-existent rules, it would be illegal and the Court could interfere under Article 226 of the Constitution of India. By following the said proposition of law, in the present case also, as the 5th respondent has issued election Notification without any authority, in the prima facie opinion of this Court, the petitioner is entitled for the interim relief sought in I.A. No.1 of 2021. Accordingly, there shall be interim stay as prayed for.” 5. The respondent No.4 has filed a counter affidavit stating that elections were conducted on 29.09.2017 to the managing committee of the 6th respondent society and the term of the committee expires by 28.09.2022. As per the allegations on the President, Secretary and other members of the society, an enquiry was ordered under Section 51 of A.P.C.S. Act, 1964 vide memo dated 12.09.2021 of the Commissioner of Fisheries, A.P., Vijayawada and vide proceedings dated 23.08.2021 of the Joint Director of Fisheries, Ongole, the Assistant Director of Fisheries, Chirala was appointed as enquiry officer. The enquiry officer has stated that during the years 2012 and 2017, the society had conducted elections fraudulently and contrary to the A.P. Cooperative Societies Act, 1967 and that the president of the 6th respondent society has committed certain irregularities and allegations were proved. 6. It is further stated in the counter affidavit that Sri. Dariboyina Ankaiah and 60 others have filed W.P.No.4927 of 2022 before this Court stating that the managing committee of the 6th respondent society has made many irregularities in the society and sought for a direction to the respondent to appoint a Person-In-Charge (PIC) to the 6th respondent society. 6. It is further stated in the counter affidavit that Sri. Dariboyina Ankaiah and 60 others have filed W.P.No.4927 of 2022 before this Court stating that the managing committee of the 6th respondent society has made many irregularities in the society and sought for a direction to the respondent to appoint a Person-In-Charge (PIC) to the 6th respondent society. In the said writ petition, this Court has issued the following interim order: “…Accordingly, there shall be interim direction to the respondents 1 to 4 to take steps to appoint Person In Charge to the 5th respondent society as per the provision of Section 32(7)(a)(i) of the Act. The respondents are further directed to lease fish tanks to the 5th respondent society to conduct fishing operations by the members of the society to eke out their livelihood.” 7. Subsequently, upon instructions of the Commissioner of Fisheries A.P., Vijayawada Joint Director of Fisheries, Ongole, vide proceedings dated 15.03.2022, the managing committee of the society was dissolved and the Fisheries Development Officer, Darsi was appointed as Person-In-Charge (PIC) to the 6th respondent society. During the financial year 2018-19, two number of two wheelers were sanctioned to the Bala Tripurasundari Fishermen Cooperative Society under Fisheries Development Scheme with subsidy of 75% by the Government and the beneficiaries contribution is only 25%. The Fisheries Department has supplied fishing nets to six members and Rs.10,000/- was paid to each member as subsidy. As such, the petitioner cannot allege that no financial assistance was sanctioned to the said cooperative society and as such, the said society is an aided society. Thereafter, when the Person-In-Charge of the society has conducted General Body Meeting of the said society on 24.07.2022 at MPDO Office, Tripuranthakam Mandal, he was requested to conduct elections to the managing committee of the 6th respondent society. Accordingly, the District Collector/District Election Officer has issued election notification by appointing the Fisheries Development Officer, Singarayakonda as election officer on 25.07.2022. The election procedure to the 6th respondent society has already started and an election notification was published on 01.09.2022 wherein it was mentioned that elections would be conducted to the society on 09.09.2022 at Grama Sachivalayam Vishwandhapuram Village, Tripuranthakam Mandal. But, the said elections were stayed in implementation of the interim orders passed in the present writ petition. 8. Heard learned counsel for the petitioner and learned Government Pleader for Fisheries. 9. But, the said elections were stayed in implementation of the interim orders passed in the present writ petition. 8. Heard learned counsel for the petitioner and learned Government Pleader for Fisheries. 9. On a perusal of the affidavit filed by the petitioner, in pursuance of the elections conducted on 29.09.2017 by the outgoing managing committee as per Section 31(2)(c) of the A.P. Cooperative Societies Act, 1964 for the 6th respondent society, the petitioner herein was elected as the president. The grievance of the petitioner is that though the 6th respondent society is an unaided society, 5th respondent, who has no authority as per Section 31(2)(c) of the A.P. Cooperative Societies Act, 1967, has issued impugned election notice dated 01.09.2022. It can also be seen that subsequent to issuance of draft voters list dated 16.08.2022, when the 5th respondent has called for objections from the members of the society, the petitioner has submitted his objections, but the same were not considered and no orders have been passed on the same. For better understanding of the case, this Court feels it relevant to refer to Section 31(2)(c) of the A.P. Cooperative Societies Act, 1964, as under: “(2)(c) 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.” 10. On the other hand, from the counter affidavit, it is evident that few members of the society have filed W.P.No.4927 of 2022 before this Court seeking a direction to the respondents therein to appoint a Person-In-Charge (PIC) to the 6th respondent society, wherein this Court has directed the respondents to initiate steps for appointing Person In Charge to the society herein as per the provisions of Section 32(7)(a)(i) of the Act. In pursuance of the same, Fisheries Development Officer, Darsi was appointed as Person-In- Charge to the 6th respondent society. In pursuance of the same, Fisheries Development Officer, Darsi was appointed as Person-In- Charge to the 6th respondent society. Later on, this Court has closed the aforesaid writ petition i.e. W.P.No.4927 of 2022 and the operative portion is extracted hereunder: “…As the enquiry under Section 51 was already completed and a report was submitted on 26.02.2022, and thereafter a Person In-charge Committee to the 5th respondent was also appointed to manage the affairs of the society under Section 32(7)(a)(i) of A.P.C.S. Act, 1964, this Court is of the opinion that no further adjudication would be necessary in the present writ petition.” 11. It can also be seen from the counter affidavit that during the financial year 2018-19, two number of two wheelers were sanctioned to the 6th respondent society under Fisheries Development Scheme with a subsidy of 75% by the Government. The Fisheries Department has also supplied fishing nets to six members and Rs.10,000/- was paid to each member as subsidy. As such, it can be understood that the 6th respondent is a State aided society and for better appreciation of the same, this Court feels it relevant to extract Section 31(2)(b) of the A.P. Cooperative Societies Act, 1964 hereunder: “(2)(b) It shall be the duty of the Registrar to hold elections to the office of the members of the committee of a society which received State aid as specified in Section 43 of the Act before the expiry of their term.” 12. At this stage this Court feels it relevant to refer to Section 43(h) of the Act: “43. State aid to Societies:- The Government may, subject to the rules,-- (h) give financial aid in any other form including subsidies to any society.” 13. As can be seen from the above, it can be understood that if a society receives financial aid in the form of subsidies from the Government, it can be treated as an aided society. Even in the present case, the 6th respondent society has received two number of two wheelers under Fisheries Development Scheme with a subsidy of 75% by the Government and the Fisheries Department has also supplied fishing nets to six (6) members and Rs.10,000/- was paid to each member of the society as subsidy. As such, it can be concluded that it is a Government aided society. As such, it can be concluded that it is a Government aided society. In view of the same, this Court is of the opinion that Section 31(2)(b) would be applicable in the present case and as such, the impugned notice issued by the 5th respondent dated 01.09.2022 is neither illegal nor arbitrary. 14. At this stage, this Court feels it appropriate to refer to a judgment of the High Court of Allahabad, in Fahim Ahmad and Ors. Vs. State of U.P. and Ors., MANU/UP/2610/2009, which reads as under: “26. In view of the law declared by Hon'ble the Supreme Court in Pundlik v. State of Maharashtra (supra), we find that the writ Court was justified to hold that once election process commences and is notified with that ordinarily High Court should not interfere under Extraordinary Jurisdiction under Article 226 of the Constitution of India. Hon'ble the Single Judge has also rightly held that the question relating to faulty electoral roll is not a ground for interference, specially when breach of any statutory provision or rule has not been complained of in the preparation of the said electoral roll.” 15. In view of the law laid down by the High Court of Allahabad in the above judgment, once an election process is set in motion, Courts would not interfere, stall or stultify the same. Election process once commenced must be permitted to run its logical course till the end. If Courts interfere in the midst of an election process and litigation being what it is, no election will ever be expeditiously completed. It is best, therefore, that the process once set in motion is not interrupted. It is best left undisturbed and allowed to be completed. 16. With regard to recommencement of elections, this Court feels it relevant to refer to Section 22-C of the A.P. Co-operative Societies Rules, 1964, which is extracted hereunder: “22-C. (1) Notwithstanding anything contained in these rules, the Government or the Election authority may direct the postponement of elections under one or more of the following circumstances: (i) Break down of law and order affecting the peaceful and lawful conduct of elections. (ii) Any natural calamity that prevents the conduct of elections particularly, voters from participation in the election. (iii) Where there is reasonable apprehension that voters will not be allowed to vote frankly and freely. (ii) Any natural calamity that prevents the conduct of elections particularly, voters from participation in the election. (iii) Where there is reasonable apprehension that voters will not be allowed to vote frankly and freely. (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 recommended when the conditions become conductive 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. From the above, it can be seen that neither the Act nor the Rules empower the election authority to cancel the election process after its commencement. If for any reason, the election process is interrupted and postponed, clause (b) of Rules 22(c)(1) mandates that after such postponement the election process shall be recommenced if the conditions become conducive for recommencement of the election by issue of an order by the authority that has postponed the elections and that the process will recommence from the stage at which it was obstructed or interrupted. Thus, far from there being any provision enabling the election authority to cancel the election process, the provisions ordains the election authority to recommence the election process from the stage at which it was obstructed or interrupted. 18. In view of the above discussion, this Court is of the opinion that the impugned election notice dated 01.09.2022 issued by the 5th respondent is neither illegal nor arbitrary and as such, this Court finds no merits in the present writ petition. However, the respondents are at liberty to recommence the election process from the stage where it was obstructed, interrupted and stayed by the Court, as per Section 22-C of the A.P. Cooperative Societies Rules, 1964. 19. Accordingly, this writ petition is dismissed. The interim order granted by this Court on 07.09.2022 shall stand vacated. There shall be no order as to costs. Miscellaneous petitions pending, if any, in the Writ Petitions, shall stand closed.