The Friends Consumers Co-operative Stores Ltd., Hyderabad vs The Election Officer, The Hyderabad District Central Consumers Co-operative Stores Ltd., Hyderabad and Others

Honourable Mr. Justice P.A. Choudary

The Hyderabad District Central Consumers Cooperative Stores Ltd., Malakunta Road, Hyderabad is a Co. operative Society registered under the A.P. Co-operative Societies Act (A.P. Act VII of 1964) (herein after called the Act). It has total membership of 38 Societies. The election officer, who is the 1st respondent herein, has issued a notice dated 3-7-79 proposing to hold the general body meeting of the aforesaid Society for the purpose of conducting elections to its Managing Committee at 11 A.M. on 19-7-79. Along with that notice, the 1st respondent the Election officer also published a list of members who are eligible to vote in the a foresaid elections. The petitioner was one of those persons who bad filed his nomination along with 27 others. Scrutiny of the nominations was done on 20-4-1979 and four nominations were rejected by the 1st respondent. The valid list of 24 nominations was published out of which 12 had withdrawn, leaving 12 members in the field. At that stage when the polling was to take place on 20-4-79, fore candidates including the present petitioners, whose nominations were rejected by the 1st respondent, filed W.P. No. 3484/79. The aforesaid writ petition was finally dismissed on 25-6 1979 and after dismissal of the aforesaid writ petition, the general body was once again summoned to meet on 19-7-1979. At that stage the present writ petition has been filed, this time challenging the validity of the voters'' list published by the 1st respondent. According to the voters'' list published by the 1st respondent, all the members of the Society had been declared to be eligible to vote and accordingly their names have been shown in the voter''s list. The contention of the writ petitioner is that according to an amendment to Bye-law No. 4 approved and registered on 19-4-76, no member who does not take shares for a minimum value of Rs. 7,000/- shall be eligible to exercise the right to vote. Out of the total number of members only 16 hold these number of shares and they alone would be entitled to be the voters in the general body meeting and the rest would not be entitled to vote. The complaint of the petitioner is that the 1st respondent, election officer had ignored this amended Bye-law No. 4 and had included all the members as voters. It is argued by the petitioners that the 1st respondent who is the election Officer has no authority or jurisdiction to go into the validity of the amended Bye-law No 4. His duty is only to implement and act according to the terms of the amended. By-law. The petitioners therefore say that the 1st respondent, in so far as he has failed to omit the names of those members who do not hold Rs. 7,000/- worth of shares from the list of voters, has acted contrary to the amended Bye-law No. 4. The 1st respondent has no jurisdiction to do this, because his power does not extend to sit in judgment over the validity of any By-law which has been duly approved and registered. Further it is stated for the petitioners that the amended Bye law is not inconsistent with the Act. It is wholly in harmony with the tennor and spirit of sections 24 and 25 of the Act. For that reason also the petitioner said, that the 1st respondent acted illegally in disregarding the amended Bye-law. On the other hand, Mr. Venkataramanayya, appearing for the contesting member-respondents and Mr. Ramaswamy, appearing for the Election officer, argued that the amended Bye-law No. 4 is wholly contrary to Section 25 of the aforesaid Act, because it creates two classes of members, one belonging to the privileged class of having a right to vote and the other belonging to an inferior class of having no right to vote. This, the respondents say is not intended by the Act. Their argument is that a person should become a member of the society by acquiring certain number of shares as prescribed by the Rules or Bye laws, but once he acquires the status of a member, his right to vote is guaranteed by Section 25 read with Sections 30 and 31 of the aforesaid Act. The aforesaid Bye-law No. 4 has taken away their right to vote guaranteed to them u/s 25. It is clearly inconsistent with the provisions of the Act. The respondents also argued that the 1st respondent, who is the Election officer, is appointed under Rule 22 of the Act. Under that Rule and more particularly, Rule 22-A clause 3, it become the duty of the Election officer, to prepare a list of members eligible to vote and publish the same which shall contain the admission number and name of the member, the name of the father or husband and the address of such member, the admission number, the name of the society, name of the delegate proposed to represent the society in the case of a member-society. The argument of the respondents is that, while the Election officer prepares a list of members eligible to vote, it becomes part of his duty to decide who are the members that are eligible to vote. In deciding that question, the Election Officer should act in accordance with the mandate contained in the aforesaid Act and more particularly Sections 25, 30 and 31 according to which, every member who is otherwise not disqualified is entitled to vote at the General Body. The respondent also said that in view of the fact that the petitioner bad earlier filed a writ petition No. 3484/79 without raising this question of the invalidity of the voters'' list prepared by the Election officer, this writ should be dismissed on the ground of constructive res judicata.

The points that arise for determination in this case are three-fold; Firstly, whether the amended bye-law No. 4 is valid or not? Secondly, even though it is invalid, is it open for the Election officer to disregard it and prepare a list of eligible voters on that basis? Finally, even if the Election Officer cannot disregard a bye-law which has been duly registered, should this Court refuse to grant the relief to the petitioners which is substantially based upon the ground of validity of bye-law No. 4?

The question relating to the validity of the bye-law No. 4 does not present, in my view much difficulty. Section 25 clause (1) of the Act categorically declares "every member shall have one vote in the affairs of the society and shall exercise his vote in person and not by proxy." This declaration, in my view, clearly negatives the argument which seeks to sustain the validity of bye-law No. 4. If every member of the society shall have one vote how can that statutory right be taken away by a bye-law providing that the right to vote should depend not upon the membership but on the possession of certain member of shares? Clearly, such a bye-law would be running contrary to the tenor of Section 25 Clause 1 of the Act. Further more, u/s 30 (1) (a) it is contemplated that the ultimate authority of a society should vest in the General Body. The word ''General Body'' has been defined by Section 2 (g) of the Act as meaning "all the members of the society". Now, section 30 (1) (a) clearly means that the ultimate authority of the society shall vest ''in all the members of the society''. Now, if the validity of bye-law No. 4 is upheld, it would mean that in this case only 14 members out of 44 members would be entitled to exercise the ultimate authority of the society. This would be clearly contrary to Section 30 (1) Similarly, Section 30 Clause 2 provides that the ''General Body'' meaning thereby, ''all the members of the Society'', shall be the competent authority to elect and remove the members of the society. Once again the bye-law No. 4 by seeking the transference of power from the General Body to some other-authority it runs cocenter to Section 31 Clause (1) which says that the General Body shall constitute a committee. In that event Sec. 31 would also loss its meaning and significance if the validity of the bye-law No. 4 is upheld. I have already noted that if the validity of bye-law No. 4 is upheld, then it would not be the General Body but a part of the General Body and that too, a small minority that the managing committee would come to be constituted. This would be not only contrary to the language of Section 31 Clause 2 but would also be contrary to the provisions of Section 4 of the Act. A cooperative society is constituted for the promotion of economic interests of its members in accordance with the cooperative principles. This implies that all the members of a co-operative society should be entitled as a matter of their right to choose the Members. For the aforesaid reasons, I am clearly of the opinion that the bye-law No. 4 as amended would be invalid as being contrary to the provisions of the Act.

Assuming the bye-law No. 4 is invalid, the petitioners'' argument is that it is not open for the Election Officer to declare it to be so. This argument proceeds on the basis that once a bye-law is registered by a competent authority, the question of its invalidity cannot be gone into by the Election Officer. It is no doubt true that a Tribunal or other authority with limited jurisdiction cannot enquire into the validity of the very Statute under which it is constituted. Its function would be act within the four corners of the Statute. This limitation would not apply to the Courts of unlimited jurisdiction. But all this would only mean that the question whether an Election Officer has or has not got the power to disregard bye-law No. 4 must be decided by Rule 22 A (3) read with Section 31 (3) (a) and (b) of the Act. It certainly cannot mean that mere physical act of registering a bye-law should operate as a legal bar for the exercise of these statutory powers u/s 31 (3) (a) read with rule 22 of the aforesaid Act. Under Sec. 31 (3) (a) the statute mentions who could be authorized by the Registrar to be the Election Officer. Now in this case, the Deputy Registrar of co-operative Societies, has been constituted as an Election Officer. When once he has been so authorized u/s 31 (3) read with Rule 22, it becomes his duty to prepare a list of members eligible to vole. For that purpose, the Election Officer must be guided primarily by what is said in Section 25 (1) and Sections 30 and 31 of the Act. If he finds that under bye-law a Member of the society is rendered ineligible, it becomes his duty to disregard such a bye law, otherwise, he will not be discharging his duties of preparing a list of Members eligible to vote. No doubt, the Election Officer is caught on the horns of a dilemma. The question before him would be either to validate the bye-law and disregard Sections 25, 30 and 31 or to follow the Act and disregard the bye-law. Such a dilemma cannot, be solved by an Election Officer by giving paramount to the statutory provisions which would clearly over-ride and invalidate an inconsistent bye-law like bye-law No. 4. In the famous case of Marbury Vs. Madison L. Ed. P. 60 at 73 Chief Justice Marshall posed the question in the following words:--

If the Act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be no law, does it constitute a rule as operative as it was a law? This would be to over-throw in fact what was established in theory; and would seem, at first view, an absurdity to gross to be insisted on.

I therefore think that the Election Officer is clothed with ample power and authority to disregard the efficacy of the validity, of bye-law No. 4 and proceed to prepare a list of voters in accordance with the Statute.

Even otherwise, I am still of the opinion that this writ petition filed by the petitioners for a declaration that the list of eligible voters as prepared by the Election Officer should be declared as void, can only be allowed by holding that the list is invalid and the bye law is valid. Acting under Article 226, this Court should not allow itself to have only a partial vision of the entirety of the dispute. By doing so, in this case, this Court would be enforcing the provisions of a bye-law which are clearly inconsistent with the Statute. It has been held by the Supreme Court in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, that such a course should not be taken. In view of this, I must dismiss this writ petition even on the basis that the Election Officer had no authority to disregard the bye-law.

In view of the above, it is not necessary to consider the argument advanced by the respondents that this writ petition is hit by the doctrine of constructive res judicate. For all the above reasons, I dismiss this writ petition, but without costs.