The provisions of either APCS Act or APCS Rules do not empower the Authority concerned to issue a fresh Notification after the election was stopped, more so Rule 22-C of the APCS Rules lays down that the election shall be recommenced from the stage when it was stopped. 25. The learned single Judge while disposing of W.P.No.37509 of 2012 also did not issue any direction to the respondents to issue a fresh Election Notification. Moreover, the learned single Judge specifically held that since the petitioners have not paid the enhanced share capital on the date of Election Notification, they are not entitled to vote in the election. The said finding has attained finality. The issue which the petitioners raised in W.P.No.37509 of 2012 before the learned single Judge earlier is identical to the issue involved in the present case. The issue had already been decided against them in the earlier writ petition. Therefore, in the considered view of this Court, they cannot reagitate the issue in the present writ petition on the mere ground that there was delay in conducting the elections. 26. As already observed, the delay in conducting the elections is attributable to the petitioners but not to the respondents. Having rushed to the Court and stalled the election, the petitioners cannot take advantage of the situation. Therefore, I see no substance in the contention that a fresh Election Notification after including the names of the petitioners in the Voters List has to be issued before conducting elections to the 4th respondent-Society. 27. For the foregoing reasons, the writ petition fails and the same is dismissed. The respondents are directed to recommence the election from the stage where it was stopped and to complete the entire process within a period of 2 (two) months from the date of receipt of a copy of this order. The miscellaneous petitions, if any, pending in this writ petition shall stand closed. No costs.

HONBLE SRI JUSTICE R.KANTHA RAO      

Writ Petition No.32491 of 2014

01-4-2015

P.Kotya  and 8 others Petitioners

State of Telangana,   Rep. by its Prl. Secretary, Dept. of Fisheries,
Secretariat, Hyderabad; and 15 others Respondents

Counsel for the Petitioners:Sri Kowturu Vinaya Kumar
 Counsel for Respondents 1 to 3: Government Pleader for
                                 Irrigation & CAD

Counsel for Respondents 4 & 5: Government Pleader for
                               Fisheries
Counsel for Respondents 6 to 16: Ms. M.Vidyavathi

<Gist:

>Head Note:
       
? Cases referred:
  1. AIR 2001 SC 3982
  2. AIR 1994 DELHI 69

HONBLE SRI JUSTICE R.KANTHA RAO      

Writ Petition No.32491 of 2014

Date: 01-4-2015


Order:
        This writ petition is filed seeking a Writ of mandamus
declaring the order dated 18-10-2014 issued by the
2nd respondent as arbitrary, illegal and violative of
principles of natural justice, to set aside the same and to
further direct the respondents 2 to 5 to include the names
of the petitioners in the Voters List in respect of the
4th respondent-Fishermen Cooperative Society before
conducting elections.

     2. The petitioners are tribals and fishermen by
profession.  They are the members of the Fishermen
Cooperative Society, Cheruvumadaram in Khammam    
district.  The 4th respondent herein issued proceedings
dated 29-11-2012 deleting the names of the petitioners
from the Voters List while issuing a Notification to conduct
elections to the 4th respondent-Society on the ground that
they have not remitted the enhanced share capital amount
of Rs.50/- as required under Rule 18 of the Andhra Pradesh
Cooperative Societies Rules, 1964 (the APCS Rules, for
short) and also as per the orders issued by the
Commissioner of Cooperation and Registrar of Cooperative
Societies, Andhra Pradesh, Hyderabad, dated 04-8-2003.
Aggrieved by the deletion of the names from the Voters List
published by the 4th respondent-Society, the petitioners and
some others filed Writ Petition No.37509 of 2012 and
learned single Judge of this Court stayed the election by
order dated 05-12-2012.  Ultimately, the said writ petition
was dismissed on the ground that the petitioners have not
paid the enhanced share capital amount of Rs.50/- per
member and therefore, they are not eligible to vote in the
election.  The learned single Judge while dismissing the writ
petition observed that however, subsequent to the Election
Notification, the petitioners paid the enhanced share capital
on 30-3-2013.

     3. Thereafter, the impugned order dated 18-10-2014
was passed by the 2nd respondent directing the
5th respondent to complete the process of election in
accordance with the procedure as contemplated under
Rule 22 of the APCS Rules.  The said order indicated that
the elections have to be recommenced from the stage at
which they were stopped and the election was to be held on
30-10-2014 on the basis of the earlier Voters List dated
29-10-2012 whereunder the names of the petitioners were
deleted on the ground of non-payment of additional share
capital amount of Rs.50/-.  It is submitted by the
petitioners that this Court while dismissing the earlier writ
petition had not issued any direction to the authorities to
conduct election from the stage where it was stopped and
recorded the factum of payment of additional share capital
amount on 30-3-2013 by the members.  Therefore, the
version of the petitioners is that the 2nd respondent ought to
have issued fresh Election Notification after preparing the
Voters List by including the names of the petitioners since
they have complied with the objection by paying the balance
share capital amount on 30-3-2013.  The contention of the
petitioners is that the earlier Voters List was published on
29-11-2014, the writ petition was dismissed on 20-11-2013
and after the lapse of nearly one year and 11 months, if the
elections are held basing on the old Voters List, their right
to participate in the election is affected and therefore, the
impugned order is illegal, which is liable to be set aside in
the present writ petition.  It is further contended that the
respondents after dismissing the writ petition on
20-11-2013 did not take any steps for so many months and
issued the impugned order proposing to conduct election
basing on the old Voters List which is impermissible in law.
Thus, they filed the present writ petition to set aside the
impugned order dated 18-10-2014 and to conduct election
to the Society only after including the names of the
petitioners in the Voters List.
       
     4. It is contended by the respondents in the Counter
Affidavit filed by the 3rd respondent that as per Clause (b) of
sub-rule (1) of Rule 22-C of the APCS Rules, after
postponement of election it should be recommenced when
the conditions become conducive for recommencing of
election, by issuing an order by the Authority that has
postponed the elections.  Therefore, the election was
stopped on account of the orders passed by this Court and
it has to be recommenced after W.P.Nos.37509 of 2012 and
37384 of 2012 were dismissed.  It is further contended that
the High Court has not struck down the Election
Notification issued on 30-11-2012 in both the writ petitions
and there were no orders to issue Election Notification
afresh.  Therefore, according to the respondents, the
question of issuing fresh Election Notification is not
permissible.

        5. Nextly, it is submitted that the term of the previous
Managing Committee expired in 2010, since then it was
managed by the official three-men Committee till April,
2014, the term of the Committee was extended up to 3
years periodically, the Government is empowered under
Section 32(7) of the Andhra Pradesh Cooperative Societies
Act, 1964 (the APCS Act, for short) to appoint a person or
persons to manage the affairs of the Society, however, the
aggregate period shall not exceed 3 years and therefore, the
Government have not extended the term beyond
3 years.

        6. Lastly, it is submitted that the Society has strength
of 388 members, it has a very large tank in its area of
operation named Shahajada Tank and there is no fishing
since 2012 as there was no elected Managing Committee.
Therefore, it is said that there is dire necessity to conduct
elections immediately and to put the affairs of the Society in
order.  It is further submitted that the High Court has not
declared the Election Notification dated 29-11-2012 as ultra
vires or illegal.  It is also contended that under Section 61 of
the APCS Act, after commencement of the election process if
there are any irregularities in the Voters List, it can be
resolved only by filing a petition under Section 63 of the
APCS Act before the Tribunal after declaration of result of
the election and not before by filing a petition before the
Tribunal having jurisdiction.  Contending as above, the
respondents sought to dismiss the writ petition.

        7. I have heard Sri Kowturu Vinaya Kumar, learned
counsel appearing for the petitioners, the learned
Government Pleader for Irrigation and Command Area
Development appearing for the respondents 1 to 3, the
learned Government Pleader for Fisheries appearing for the
respondents 4 and 5, and Ms. M.Vidyavathi, learned
counsel appearing for the respondents 6 to 16.

     8. In W.P.No.37509 of 2012, the learned single Judge
of this Court specifically held that since the petitioners paid
the enhanced share capital only on 30-3-2013 which is
subsequent to the date of Election Notification, there is no
infirmity or illegality in the Election Notification warranting
interference under Article 226 of the Constitution of India.
Holding as such, the learned single Judge dismissed the
writ petition and vacated the interim order dated
05-12-2012 whereby the election process was stopped.
Thus, the learned single Judge upheld the contention of the
respondents that as the petitioners failed to pay the
enhanced share capital as on the date of Election
Notification, they are not entitled to participate in the
election.  The said finding became final.  The learned
counsel appearing for the petitioners submits that the writ
petition was disposed of on 20-11-2013, so far no election
has been held and in such an event, it is unfair to proceed
with the election from the stage at which it was stopped
without including the names of the petitioners in the Voters
List as they admittedly paid the enhanced share capital on
30-3-2013.

        9. On the other hand, the learned Government Pleader
for Irrigation and Command Area Development would
contend that any election, which is stopped by an order of
the Court, has to be recommenced from the stage at which
it was stopped and issuing a fresh Election Notification is
contrary to the Rules governing the conduct of elections
under the APCS Rules and therefore, the writ petition is
liable to be dismissed.

     10. For appreciating the contentions urged by both the
learned counsel, the following provisions have to be
referred:
     Rule 18 of the APCS Rules lays down that no member
of a society, shall have the right to stand as a candidate or
to vote in any election to the society, unless he subscribes
a minimum share capital of Rs.300/- and is not in default
of any amount due in cash or kind to the society for
a period exceeding three months.
     The proviso states that a list of eligible members with
right to vote and those without right to vote shall be
prepared and displayed on the Notice Board of the society
and branches prior to holding of any General Body meeting
or holding of elections in the manner as laid down in the
bye-laws.


     11. Rule 22-C of the APCS Rules lays down as follows:
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.
      (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  
recommencing 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.

     12. By virtue of Rule 18 of the APCS Rules, since the
petitioners have not paid the enhanced share capital as on
the date of Election Notification, they are not eligible to
contest or vote in the election.  It was held so by the learned
single Judge in the aforesaid writ petition and the said
decision became final.  Since the petitioners paid the
enhanced share capital on 30-3-2013, they are eligible to
participate in the election only if a fresh Election
Notification is issued.

     13. The question, therefore, requires for consideration
in the present writ petition is, having regard to the facts and
circumstances of the present case whether the elections
have to be renotified by issuing a fresh Notification to
enable the petitioners to participate in the election.

     14. Rule 22 of the APCS Rules says that if the
elections are postponed, the elections shall be recommenced
by issue of an order by the authority which postponed the
elections and the process will recommence from the stage at
which it was obstructed or interrupted.

     15. In the instant case, the election was not stopped
on account of any situations mentioned in Rule 22-C of the
APCS Rules.  The process was stopped on account of  
an interim direction issued by this Court stopping elections.
The learned single Judge while dismissing the writ petition
had not issued any direction for issuing a fresh Election
Notification.  In the opinion of this Court, the condition
mentioned in Rule 22-C of the APCS Rules that the election
process will recommence from the stage at which it was
obstructed or interrupted equally applies to the situation
where the election was stopped on account of an order of
the Court, more so in the absence of any specific direction
by the Court to issue a fresh Election Notification.

     16. As regards the delay in conducting the election,
it is not on account of any act of the respondents but it is
on account of the petitioners who filed the writ petition
seeking to set aside the Election Notification besides
obtaining stay of election.  Because of the orders passed by
this Court and due to other administrative exigencies, the
elections could not be held by the respondents so far.
Therefore, for the delay the respondents cannot be found
fault with and it is not open for the petitioners to contend
that since there is delay in conducting the elections, a fresh
Election Notification has to be issued.

     17. In this context, it would be necessary to refer to
a judgment of the apex Court in SHRI SANT SADGURU    
JANARDAN SWAMI (MOINGIRI MAHARAJ) SAHAKARI          
DUGDHA UTPADAK SANSTHA v. STATE OF        
MAHARASHTRA , wherein the Supreme Court held that    
since preparation of the electoral roll is 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 of breach of
rules while preparing the electoral roll.
     18. In the present case also, the election of the Society
was challenged at an intermediate stage just two days
before the polling day.  In view of the ratio laid down by the
apex Court in SHRI SANT SADGURU JANARDAN SWAMI          
(MOINGIRI MAHARAJ) SAHAKARI DUGDHA UTPADAKA            
SANSTHA (1 supra), the petitioners could have challenged
the election only after declaration of the results by filing
an election petition but ought not to have resorted to stall
the election process by filing a writ petition.  Therefore, the
delay in conducting of elections cannot be attributed to the
respondents and the petitioners cannot take the delay to
their advantage.

     19. The learned counsel appearing for the petitioners
would submit that since the petitioners paid the enhanced
share capital on 30-3-2013 and the elections could not be
held for a long time, a fresh Voters List has to be prepared
and after including the names of the petitioners in the
Voters List, a fresh Election Notification has to be issued.
The learned counsel appearing for the petitioners would
further submit that the petitioners are not intending to
contest in the elections and they can at least be permitted
to vote in the election proposed to be held.

     20. In support of his contention, the learned counsel
appearing for the petitioners relied on A. S. GAHLOUT v.
LT. GOVERNOR OF DELHI , wherein the Full Bench of  
Delhi High Court took the view that the elections to the
managing committee of a co-operative society are normally
held in the Annual General meeting of the society, no formal
procedures as applicable to elections held under the
Representation of the People Act are prescribed or
envisaged.

     21. In A. S. GAHLOUT (2 supra), the Full Bench of the
Delhi High Court was dealing with the powers of the
Lieutenant Governor under sub-section (7) of Section 31 of
the Delhi Co-operative Societies Act, 1972, wherein there is
a provision to refer the dispute regarding the election of
members of the committee to the Lieutenant Governor and
the Lieutenant Governor has been endowed with final
authority to ensure that free and fair elections are held in
co-operative societies falling in the class covered under
Section 31 of the Delhi Co-operative Societies Act, 1972.

     22. Therefore, the Full Bench of Delhi High Court was
dealing with a different situation concerning the powers of
the Lieutenant Governor in the matter of election of the
members of the committee of the society.  The Full Bench
noticed that the provisions of the Delhi Co-operative
Societies Act, 1972 are totally different and independent of
the provisions of the Representation of the People Act, 1951.

     23. But, in the instant case, there is a specific
provision under Rule 22-C of the APCS Rules which lays
down that the election if stopped shall be commenced from
the stage where it was stopped.  Therefore, the provisions
under the APCS Act regarding the conduct of elections
cannot be said to be altogether independent and different to
that of the provisions of the Representation of the People
Act.  Even under Rule 22-C of the APCS Rules, the election
has to be recommenced from the stage where it was
stopped.  Thus, the decision relied on by the learned
counsel appearing for the petitioners is not applicable to the
facts of the present case.

     24. The provisions of either APCS Act or APCS Rules
do not empower the Authority concerned to issue a fresh
Notification after the election was stopped, more so
Rule 22-C of the APCS Rules lays down that the election
shall be recommenced from the stage when it was stopped.

     25. The learned single Judge while disposing of
W.P.No.37509 of 2012 also did not issue any direction to
the respondents to issue a fresh Election Notification.
Moreover, the learned single Judge specifically held that
since the petitioners have not paid the enhanced share
capital on the date of Election Notification, they are not
entitled to vote in the election.  The said finding has
attained finality.  The issue which the petitioners raised in
W.P.No.37509 of 2012 before the learned single Judge
earlier is identical to the issue involved in the present case.
The issue had already been decided against them in the
earlier writ petition.  Therefore, in the considered view of
this Court, they cannot reagitate the issue in the present
writ petition on the mere ground that there was delay in
conducting the elections.

     26. As already observed, the delay in conducting the
elections is attributable to the petitioners but not to the
respondents.  Having rushed to the Court and stalled the
election, the petitioners cannot take advantage of the
situation.  Therefore, I see no substance in the contention
that a fresh Election Notification after including the names
of the petitioners in the Voters List has to be issued before
conducting elections to the 4th respondent-Society.

     27. For the foregoing reasons, the writ petition fails
and the same is dismissed.  The respondents are directed to
recommence the election from the stage where it was
stopped and to complete the entire process within a period
of 2 (two) months from the date of receipt of a copy of this
order.  The miscellaneous petitions, if any, pending in this
writ petition shall stand closed.  No costs.

___________________  
R.KANTHA RAO, J.  
01st April, 2015.

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.