Kokkiligadda Srinivasa Rao vs State Of Andhra Pradesh & Others

M.Ganga Rao, J

The petitioners (10 in numbers), who are the members of the 5th respondent society, filed this writ petition questioning the impugned notification dated 04.12.2021 issued by the 4th respondent as illegal, arbitrary and unconstitutional and seeks to set aside the same.

The case of the petitioners is that the 5th respondent society was established at about 25 years back. As per the society bye-laws, election to the Managing Committee has to be conducted for every three years. For all the previous years, the election of the Managing Committee was unanimous. Now, the members of the society are divided into two groups as per their loyalty to political parties, which resulted in conducting the election. Then, they intend to contest the election. The 4th respondent issued the impugned election notification on 04.12.2021, as per the orders of the 2nd respondent – District Election Authority. The election has been scheduled to be held on 20.12.2021 in the local school premises at 2.00 p.m. and the mode of election is by raising of hands. The strength of voter list is 774 members. Some members who are above 50 years of age are given monthly pension of Rs.2,000/- and some others are getting Rs.2,000/-per month towards diesel for each fisherman family for their fishing boats. The mode of conducting election by raising hands would lead to personal animosity or ill-will and also the voters cannot exercise their vote freely without fear. In those circumstances, they submitted a representation on 05.12.2021 to the 4th respondent – Election Officer to conduct election by way of secret ballot to enable the members to exercise their votes to elect the representatives in a democratic manner freely and fairly. Without considering the said representation, the Election Officer has been proceeding with the election, which is illegal, arbitrary and contrary to the provisions of the Andhra Pradesh Co-Operative Societies Act, 1964 and the Rules made thereunder.

The 3rd respondent – Joint Director of Fisheries, Machilipatnam, Krishna District filed counter stating that Rule 22B of the Andhra Pradesh Co-Operative Societies Rules, 1964 (for short ‘the Rules, 1964’) deals with mode of election of member of committees of weaker section societies or societies having a small number of membership and the mode of procedure will be by show of hands in the general meeting convened for the election. The said Rule also says that the outgoing Managing Committee of the society has to pass the resolution to conduct the elections by way of secret ballot or the Election Officer has to take a decision to avoid law and order problem. In those circumstances, the election was conducted on 20.12.2021 in a free and fair manner under peaceful environment by method of raise of hands.

Sri V.V.Satish, learned counsel appearing for the petitioners, would contend that only in the case of conduct of elections to the societies having a small number of membership, the method of show of hands could be followed. But, in the 5th respondent society, there are 774 members and voters. It is very difficult to count the election by show of hands and the participation of members in the election could also be reduced due to raising of hands in favour of a particular candidate as the other contesting candidates will develop ill-will and grudge against them. If the contesting candidate is a ruling party candidate in whose favour the hand is not raised, there is every possibility of withdrawing the pension and other benefits provided by the Government and there could not be any free and fair election to the society. In support of his contention, he relied on the decision of this Court in the case of Guggilla Raja Narsimulu Vs. The District Collector, Karimnagar District cum Election Authority, Karimnagar & others passed in W.P.No.23246 of 2014 dated 04.09.2014, wherein the members of the society challenged the notification issued for conduct of elections to the society by secret ballot stating that the said procedure is contrary to the provisions of Rule 22B and Clause (b) of Rule 22B of the Rules, 1964, where the strength of the total membership of the society is 250. The said writ petition was dismissed by holding that the election authority has taken a decision to conduct the election by secret ballot method and the same could not said to be illegal as the election authority has taken into consideration all the issues and decided to conduct the election by secret ballot.

Per contra, learned Assistant Government Pleader for Fisheries, while reiterating the averments of the counter, has stated that the election authority decided to conduct the election by show of hands and the decision of the election authority could not be challenged. The election was also conducted on 20.12.2021 freely and fairly in a peaceful atmosphere. If the petitioners are still aggrieved by the conduct of election by show of hands and if any irregularities occurred, it is left open to them to approach the Election Tribunal but not to this Court under Article 226 of the Constitution of India.

Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record, this Court found that as per the provisions of Rule 22B of the Rules, 1964 which deals with the mode of election of members of managing committees of weaker section societies or societies having a small number of membership, the Election Officer shall notify the date and time and place of election. Where the members of the society are small in number, the mode of election should be by raise of hands and if the outgoing Managing Committee of the society desires to conduct election by secret ballot, it shall request the Registrar to conduct the election by secret ballot by submitting its proposal 60 days before the expiry of the term of the Managing Committee and the Registrar shall conduct the election by following the procedure as per the Rules. If in the opinion of the Election Officer, if the elections are conducted by show of hands there would be possibility of any disturbance in conduct of poll, the Election Officer shall stop the proceedings and shall send a report to the Election Authority and then the Election Authority may order for conduct of election by secret ballot, but not otherwise.

Though the petitioners submitted representation by the on 05.12.2021 to the 4th respondent – Election Officer stating that there could not be any free and fair election to elected members of Managing Committee by show of hands and request to conduct the election by secret ballot, the Election Officer is not competent to take a decision and only the 2nd respondent – Election Authority has to take a decision to choose the mode of election to the 5th respondent society as the outgoing Managing Committee has not passed any resolution to conduct the elections by secret ballot and submitted the same to the Registrar of Societies. Now, the election was already completed to the 5th respondent society on 20.12.2021 in a free and fair manner under peaceful environment. There is no reason to interfere and set aside the election which was already conducted even if this Court has passed interim order on 20.12.2021 that any election would be subject to the result of writ petition.

In view of the above discussion, the writ petition is liable to be dismissed.

Accordingly, the Writ Petition is dismissed. However, it is left open to the petitioners, if they so aggrieved, to agitate the same before the Election Tribunal by filing proper application, as per law. No order as to costs.

Miscellaneous Petitions, if any, pending in this Writ Petition shall stand dismissed.