Andhra Pradesh High Court - Amravati
C.Vasudeva Rao vs Andhra Pradesh State on 28 September, 2022
1
CMR, J.
W.P.No.8696 of 2022
* HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ Writ Petition No.8696 of 2022
% Dated 28-09-2022.
# C.Vasudeva Rao
..... Petitioner
Versus
$ 1. State of A.P. rep. by its Prl. Secretary, G.A.D., A.P.
Secretariat, Amaravati & Ors.
..Respondents
! Counsel for the petitioner : Sri Tata Singaiah Goud,
learned counsel
^ Counsel for respondent No.1: Learned Govt. Pleader for GAD
Sri V.Maheswar Reddy
^ Counsel for respondent No.2: Sri B.A. Rao, learned counsel.
^ Counsel for respondent No.3: Sri M.Sri Vijay, Learned counsel
^ Counsel for respondents 4&5: None appeared.
<GIST:
> HEAD NOTE:
? Cases referred:
1 (1998) 8 SCC 1
2 Order dated 03.11.2009 passed in W.P.No.23374 of 2009 (AP HC)
3 Order dated 21.04.2022 passed in W.P.No.3203 of 2022 (AP HC)
4 AIR 1976 SC 2216 = (1976) 3 SCC 828
1 (2016) 4 SCC 429
6 AIR 1952 SC 64
7 (2001) 8 SCC 509
8 2003 (2) ALD 384 = 2003 (3) ALT 674
9 (1982) 1 SCC 691
2
CMR, J.
W.P.No.8696 of 2022
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
Writ Petition No.8696 of 2022
C.Vasudeva Rao
..... Petitioner
Versus
1. State of A.P. rep. by its Prl. Secretary, G.A.D., A.P. Secretariat,
Amaravati & Ors.
..Respondents
JUDGMENT PRONOUNCED ON: 28-09-2022
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1. Whether Reporters of Local newspapers ---
may be allowed to see the Judgments?
2. Whether the copies of judgment may be -Yes-
marked to Law Reporters/Journals
3. Whether His Lordship wish to see the fair -Yes-
copy of the Judgment?
JUSTICE CHEEKATI MANAVENDRANATH ROY
3
CMR, J.
W.P.No.8696 of 2022
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Writ Petition No.8696 of 2022
ORDER:
The petitioner has invoked the extra-ordinary jurisdiction of
this Court under Article 226 of the Constitution of India seeking
mandamus to declare the action of the 3rd respondent Election
Officer in rejecting the nomination of the petitioner on the ground
that his name is not tallying with the serial number in the voters
list, as illegal, arbitrary and violative of Rule 22(5) of the Andhra
Pradesh Cooperative Societies Conduct of Election Rules, 1964,
and consequently, sought direction to the 3rd respondent to stay
further proceedings pursuant to the issuance of election
notification, dated 29.03.2022.
FACTUAL MATRIX:-
2) The petitioner is an employee working as Section Officer in
Revenue Department of Andhra Pradesh Secretariat. The 2nd
respondent is an Association in the name and style "The Andhra
Pradesh Secretariat Section Officers' Association" represented by
its President. The petitioner claims to be the member of the said
Association and also a voter on the rolls of the electoral roll of the
said Association. There is an Executive Committee for the said
CMR, J.
W.P.No.8696 of 2022
Association consisting of certain office bearers. As the term of the
office bearers of the said Executive Committee expired long back,
the Executive Committee of the Association in its meeting held on
11.03.2022 has taken a decision to conduct election of office
bearers for the 2nd respondent Association. The said meeting was
presided over by Sri T.Venkata Subbaiah, Assistant Secretary,
M.A. & U.D. Department, A.P. Secretariat. The date of the election
is fixed on 08.04.2022. The 3rd respondent was appointed as
Election Officer to conduct the election.
3) Pursuant to the decision taken in the Executive Committee
meeting held on 11.03.2022 to conduct election for a period of
three years to elect the office bearers of the Executive Committee
of the Association, the 3rd respondent Election Officer issued
notification on 29.03.2022 to conduct elections. The election
schedule as per the said notification is as follows:
1. Filing Nominations 30.03.2022 to 31.03.2022 Upto 4:00 PM
2. Publication of Valid 31.03.2022 at 5:00 PM
list of Nominations
3. Last date of 01.04.2022 upto 4:00 PM
withdrawal of
Nominations
4. Publication of final 01.04.2022 at 5:00 PM
list of Nominations
5. Date of Poll 08.04.2022 (10.00 AM to 03:00 PM)
6. Counting of votes 08.04.2022 at 4:00 PM
and Declaration of
Results
CMR, J.
W.P.No.8696 of 2022
4) The petitioner has submitted his nomination to contest the
election for the post of Secretary of the Executive Committee. The
3rd respondent Election Officer has rejected the nomination of the
petitioner on the ground that his name is not tallying with the
serial number in the voters list that was published. It is stated
that the name of the petitioner is clearly shown in the voters list at
Sl.No.336, which was circulated by the 2nd respondent
Association. Though the serial number furnished by the petitioner
in the nomination form is not tallying with the serial number in
the voters list, it is stated that the name of the petitioner is clearly
found in the voters list and his identity is also well established.
Therefore, it is stated that the rejection of the nomination of the
petitioner on the ground that the serial number furnished by him
in the nomination form is not tallying with the serial number in
the voters list, is not valid under law and the nomination of the
petitioner was improperly rejected and it was deliberately rejected
and the same is contrary to Rule 22(5) of the Andhra Pradesh
Cooperative Societies Conduct of Election Rules, 1964.
5) It is further stated that Sri T. Venkata Subbaiah, who was
the former Section Officer, has presided over the Executive
Committee meeting held on 11.03.2022, in which the decision to
CMR, J.
W.P.No.8696 of 2022
conduct the election was taken. He was promoted as Assistant
Secretary, M.A. & U.D. Department, A.P. Secretariat, from the
cadre of Section Officer on 24.03.2020 itself and he was relieved
from the post of Section Officer on 08.04.2020. Therefore, as he
was promoted that he ceased to be the Section Officer and
consequently, he also ceased to be the member of the 2nd
respondent Association. So, he is not competent to preside over
the meeting of the Executive Committee. Further it is stated that
the 3rd respondent is appointed as Election Officer pursuant to the
decision taken in the said Executive Committee meeting held on
11.03.2022, presided over by the said T. Venkata Subbaiah, who
is not competent to preside over the said meeting. Therefore, it is
stated that the decision taken to conduct election in the said
meeting held on 11.03.2022 and appointing the 3rd respondent as
Election Officer in the said meeting is not valid under law.
6) Therefore, on the aforesaid grounds, the petitioner sought to
declare the action of the 3rd respondent in rejecting the
nomination of the petitioner improperly as not valid under law and
consequently, sought to interdict the process of election.
7) Respondent No.1 filed counter-affidavit stating that the 2nd
respondent Association was registered under the Societies
CMR, J.
W.P.No.8696 of 2022
Registration Act. Therefore, the petitioner has got efficacious
remedy of raising dispute before the civil Court relating to the
validity of the said election. So, the Writ Petition is not
maintainable. Further, it is pleaded that the State Government
has no role to play in the elections of any service associations
except recognizing the said Association and according permission
to conduct elections and to grant permission to any officer to act
as an Election Officer. Therefore, prayed for dismissal of the Writ
Petition.
8) Respondent No.3 - Election Officer filed counter-affidavit
stating that as per the letter, dated 15.03.2022, the Secretary of
the 2nd respondent Association has requested him to give consent
for being appointed as an Election Officer to conduct the election.
Accordingly, he has given consent. Thereafter, as per the letter
submitted by the 2nd respondent Association, dated 17.03.2022,
the 1st respondent appointed the 3rd respondent as Election Officer
and also appointed a person by name Sri K.V.S. Sai Baba,
Assistant Secretary to Government, Agriculture and Cooperation
Department, to act as Assistant Election Officer. Therefore, as per
the request made by the 2nd respondent Association, as per letter,
dated 28.03.2022, requesting to issue notification to conduct the
CMR, J.
W.P.No.8696 of 2022
election on 08.04.2022 that the 3rd respondent issued the election
notification, on 29.03.2022.
9) It is stated that accordingly, he has initiated election process
on 29.03.2022 by issuing the election notification and that the
petitioner has submitted his nomination on 30.03.2022 at 1.30
P.M. mentioning in it that his name is at Sl.No.336 in the voters
list. The said details furnished by him in the nomination form are
not tallying with the final voters list. Therefore, it is stated that
the nomination of the petitioner is rejected.
10) It is pleaded that if the petitioner got any grievance in
rejecting his nomination, he has to file an arbitration claim before
the Registrar under Section 60 of the Andhra Pradesh Cooperative
Societies Act and he cannot invoke the jurisdiction of this Court
under Article 226 of the Constitution of India. Therefore, it is
stated that the Writ Petition is misconceived and is liable to be
dismissed.
11) The petitioner has filed his reply affidavit stating that as per
the law laid down by the Apex Court in the case of Whirlpool
CMR, J.
W.P.No.8696 of 2022
Corporation v. Registrar of Trade Marks1 even when an
efficacious alternative remedy is available that when the principles
of natural justice are violated in the process of conduct of the
election that the petitioner can invoke the writ jurisdiction. It is
pleaded that the right to contest election is the fundamental right
of the petitioner and as the fundamental right of the petitioner is
curtailed by improper rejection of his nomination, the present Writ
Petition is maintainable.
12) Heard learned counsel for the petitioner Sri Tata Singaiah
Goud; and learned Government Pleader for General
Administration Department Sri V.Maheswar Reddy, appearing for
the 1st respondent; learned counsel for the 2nd respondent Sri B.A.
Rao; learned counsel for the 3rd respondent Sri M.Sri Vijay. None
appeared for the respondents 4 and 5.
CONTENTIONS:-
13) Learned counsel for the petitioner would submit that
admittedly the name of the petitioner is clearly shown in the final
voters list. But, only the serial number mentioned in the
nomination form is not tallying with the serial number in the
1 (1998) 8 SCC 1
CMR, J.
W.P.No.8696 of 2022
voters list and it is only an insignificant discrepancy in the serial
number in the voters list. He would subnmit that when the
petitioner is admittedly the member of the 2nd respondent
Association and when admittedly he is enrolled as a voter in the
final voters list, the 3rd respondent Election Officer ought to have
accepted his nomination and he committed a grave error in
rejecting the nomination of the petitioner on the trivial ground
that the serial number mentioned by him in the nomination form
is not tallying with the serial number in the voters list. He would
submit that the said rejection of nomination of the petitioner by
the 3rd respondent Election Officer amounts to improper rejection
of nomination of the petitioner, which has ultimately deprived him
of his right to contest the election. So, he would contend that the
election process is tainted and vitiated by the said illegal decision
taken by the 3rd respondent in improperly rejecting the
nomination of the petitioner. It is contended that the 3rd
respondent Election Officer did not give opportunity of being heard
to the petitioner before rejecting his nomination. So, the
principles of natural justice are also vitiated.
14) It is then contended that the Officer, who has presided over
the Executive Committee meeting held on 11.03.2022 to take a
CMR, J.
W.P.No.8696 of 2022
decision to conduct the elections is not the member of the 2nd
respondent Association and as such, he is not competent to
preside over the said meeting. So, the decision taken in the said
meeting to conduct elections for the said Association is not valid
under law. He would further contend that the 3rd respondent
Election Officer was the former member of the 2nd respondent
Association when he was working as Section Officer and as he was
promoted as Assistant Secretary that he ceased to be the Section
Officer and consequently, he ceased to be the member of the 2nd
respondent Association. So, it is contended that he cannot act as
an Election Officer for the election held for the 2nd respondent
Association. He would submit that the appointment of the 3rd
respondent as Election Officer is not valid under law.
15) As regards the maintainability of the Writ Petition is
concerned, learned counsel for the petitioner would contend that
since the Government has appointed the 3rd respondent as the
Election Officer, and as the very validity of the appointment of the
Election Officer is being challenged that the Writ Petition is
maintainable. He would also contend that right to contest election
is the fundamental right of the petitioner and as his nomination
was improperly rejected on an erroneous ground that he was
CMR, J.
W.P.No.8696 of 2022
deprived of his fundamental right to contest the election.
Therefore, when the fundamental right of a person is violated that
he can invoke the writ jurisdiction of this Court under Article 226
of the Constitution of India. He would further contend that as the
the nomination of the petitioner was improperly rejected without
hearing him that the principles of natural justice are also violated.
Therefore, as per the law laid down by the Apex Court in the case
of Whirlpool Corporation1 that even though an efficacious
alternative remedy of challenging the election is available, that the
petitioner can still invoke the writ jurisdiction of this Court under
Article 226 of the Constitution of India. Therefore, he would
contend that the Writ Petition is maintainable under law.
16) Learned Government Pleader for General Administration
Department Sri V.Maheswar Reddy, appearing for the 1st
respondent, strenuously contended that the Writ Petition is not
maintainable under law. He would contend that the 2nd
respondent Association i.e. The Andhra Pradesh Secretariat
Section Officers' Association was registered under the Andhra
Pradesh (Telangana Area) Public Societies Registration Act, on
11.08.1971, as per the Certificate of Registration issued to that
effect by the Registrar of Societies. Therefore, he would contend
CMR, J.
W.P.No.8696 of 2022
that as the 2nd respondent Association is registered under the
Societies Registration Act, in 1971, although the earlier Act of
1860 was repealed by A.P. Societies Registration Act, 2001,
Section 32(2) clearly mandates that notwithstanding any such
repeal that anything done or any action taken under the said Act
viz., the Societies Registration Act, 1860 (Central Act 21 of 1860)
in its application to the Andhra area of the State of Andhra
Pradesh and the Andhra Pradesh (Telangana Area) Public
Societies Registration Act, including issuance of certificate or bye-
laws etc. in exercise of any power conferred by or under the
aforesaid Act shall be deemed to have been done or taken in
exercise of the powers conferred by or under the present Act i.e.
2001 Act as if the said Act was in force as on the date on which
such a thing was done or action taken. Therefore, he would
contend that the registration of the 2nd respondent Association
under the earlier Societies Registration Act, 1860 is deemed to
have been done under the present A.P. Societies Registration Act,
2001. So, he would contend that when the 2nd respondent
Association was registered under the Societies Registration Act,
the petitioner has to challenge the validity of the said election even
on the ground of improper rejection of nomination of the petitioner
only by way of filing an appropriate application to that effect in the
CMR, J.
W.P.No.8696 of 2022
concerned District Court in terms of Section 23 of the A.P.
Societies Registration Act, 2001. So, he would contend that
contravening the said procedure, that the petitioner cannot invoke
the writ jurisdiction of this Court under Article 226 of the
Constitution of India.
17) He would then contend that the State Government has
absolutely no role to play in the affairs of the 2 nd respondent
Association or in the matter of conduct of the election of the office
bearers of the said Association. He would submit that it is only on
the request made on behalf of the 2nd respondent Association that
the Government has only permitted the 3rd respondent to act as
an Election Officer for the said elections and it has nothing to do
with the sovereign functions of the 1st respondent State.
Therefore, he would contend that no public law remedy is involved
in the lis to invoke the writ jurisdiction of this Court under Article
226 of the Constitution of India. He would also submit that even
on the ground that the nomination of the petitioner was
improperly rejected without hearing him cannot be a valid legal
ground to invoke the writ jurisdiction of this Court and to
maintain this Writ Petition. He would submit that the Writ
Petition is clearly misconceived and it is not maintainable under
CMR, J.
W.P.No.8696 of 2022
law. He states that the remedy of the petitioner is only by way of
filing an application under Section 23 of the A.P. Societies
Registration Act, 2001. In support of his contention, he relied on
the judgment of the erstwhile High Court of Andhra Pradesh
rendered in C.Babu Rao v. The District Registrar, Registration
of Societies, Hyderabad2 and the judgment of this Court
rendered in the case of Yelamanchili Satya Krishna v. The State
of Andhra Pradesh3 and the judgment of the Apex Court rendered
in the case of Kulchhinder Singh v. Hardayal Singh Brar4.
18) Learned counsel for the 2nd respondent - Association would
contend that when once the election process commenced by way
of issuing notification that the Courts will not usually interfere
with the election process and interdict the further process of the
election even on the ground of improper rejection of nomination or
on the ground of violation of principles of natural justice in
rejecting the nomination without hearing the aggrieved person.
He would submit that the only remedy of the aggrieved person is
by way of challenging the validity of the said election after the
election process is completed and results are announced by way of
2 Order dated 03.11.2009 passed in W.P.No.23374 of 2009 (AP HC)
3 Order dated 21.04.2022 passed in W.P.No.3203 of 2022 (AP HC)
4 AIR 1976 SC 2216 = (1976) 3 SCC 828
CMR, J.
W.P.No.8696 of 2022
filing an Election Petition in the concerned District
Court/Tribunal. In support of the said contention, he relied on
the judgment of the Apex Court rendered in the case of Shaji K
Joseph v. V.Viswanath5. Therefore, he would contend that the
Writ Petition is not maintainable and thereby prayed for dismissal
of the Writ Petition.
19) Learned counsel for the 3rd respondent Election Officer,
while adopting the arguments of the learned Government Pleader
for General Administration Department, would submit that the
Writ Petition is not maintainable and the remedy of the Writ
Petitioner is only by way of filing an application under Section 23
of the A.P. Societies Registration Act, 2001.
DECISION OF THE COURT:-
20) Although the Writ Petition is founded on the premise that
the election of the 2nd respondent Association is governed by the
A.P. Cooperative Societies Registration Act, 1964, as per the
pleadings set out in the Writ Petition, the material placed on
record and the unequivocal admission made on behalf of the
petitioner by his counsel during the course of hearing the Writ
5 (2016) 4 SCC 429
CMR, J.
W.P.No.8696 of 2022
Petition, makes it manifest and abundantly clear that the 2 nd
respondent Association is not a society registered under the A.P.
Co-operative Societies Registration Act, 1964. Therefore, the said
Act and the Rules made thereunder has absolutely no application
to the present lis. The 2nd respondent Association is not governed
by the said enactment and the Rules made thereunder.
21) Prior to the bifurcation of the erstwhile State of Andhra
Pradesh, with effect from 02.06.2014, the capital city of the
erstwhile State of Andhra Pradesh was Hyderabad. The
Secretariat of the Government of Andhra Pradesh was in
Hyderabad. The Section Officers working in the Secretariat of the
erstwhile State of Andhra Pradesh formed into an Association
called as "The Andhra Pradesh Secretariat Section Officers'
Association". It was registered under the Andhra Pradesh
(Telangana Area) Public Societies Registration Act. Earlier there
was the Societies Registration Act, 1860 (Central Act 21 of 1860)
in its application to the Andhra Area of the State of Andhra
Pradesh and the Andhra Pradesh (Telangana Area) Public
Societies Registration Act. Since, the Secretariat of the erstwhile
State of Andhra Pradesh was in Hyderabad in Telangana Area, the
2nd respondent Association was registered under the Andhra
CMR, J.
W.P.No.8696 of 2022
Pradesh (Telangana Area) Public Societies Registration Act. The
copy of the Certificate of Registration bearing No.414 of 1971,
which is now produced by the learned Government Pleader for
General Administration Department, along with the bye-laws of
the said Association, bears ample testimony of the fact that the 2nd
respondent Association was registered under the aforesaid
Societies Registration Act. Learned counsel for the petitioner
would also fairly concede that the 2nd respondent Association was
originally registered in the year 1971 under the aforesaid Societies
Registration Act. Therefore, the fact that the 2nd respondent
Association was registered under the Societies Registration Act is
now beyond question and it is also an admitted fact. So, the 2 nd
respondent Association was originally established under the
Societies Registration Act, 1860, and it is governed by the said
Act. The said Societies Registration Act, 1860, was subsequently
repealed by the Andhra Pradesh Societies Registration Act, 2001.
Section 32 of the A.P. Societies Registration Act, 2001, deals with
repeals and savings. It reads thus:
"32. Repeal and savings - (1) The Societies Registration Act,
1860 (Central Act 21 of 1860), in its application to the Andhra area
of the State of Andhra Pradesh and the Andhra Pradesh (Telangana
Area) Public Societies Registration Act, 1350F (Act 1 of 1350F) are
hereby repealed.
CMR, J.
W.P.No.8696 of 2022
(2) Notwithstanding such repeal, anything done or any action
taken under the said Acts (including any order, rule, form
regulation, certificate or bye-laws) in the exercise of any power
conferred by or under the said Acts shall be deemed to have been
done or taken in the exercise of the powers conferred by or under
this Act as if this Act was in force on the date on which such a thing
was done or action taken."
22) Clause (2) of Section 32 starts with non-obstante clause. It
makes it manifest and abundantly clear that notwithstanding the
repeal of the Societies Registration Act, 1860, anything done or
any action taken under the said Acts, including issuance of
certificate or bye-laws, in the exercise of any power conferred by or
under the said Act, which was repealed, shall be deemed to have
been done or taken in the exercise of the powers conferred by or
under this Act i.e. A.P. Societies Registration Act, 2001, as if this
Act was in force on the date on which such a thing was done or
action taken. Therefore, by virtue of the said saving clause, the
2nd respondent Association is now deemed to have been registered
under the present A.P. Societies Registration Act, 2001 and it is
now governed by the said enactment.
23) Now, the question is whether the petitioner can invoke the
extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India to challenge the decision of the 3rd
CMR, J.
W.P.No.8696 of 2022
respondent Election Officer in rejecting the nomination of the
petitioner on the ground of improper rejection of the said
nomination and to stall the further process of election or whether
he has to file an application under Section 23 of the A.P. Societies
Registration Act in the concerned District Court i.e. the Principal
Civil Court of original jurisdiction.
24) As the matter pertains to an election dispute relating to the
election of office bearers of the Executive Committee of the 2nd
respondent Association, the dispute squarely falls within the
ambit of Section 23 of the A.P. Societies Registration Act, 2001.
Section 23 reads thus:
"23. Dispute regarding management - In the event of any
dispute arising among the Committee or the members of the society,
in respect of any matter relating to the affairs of the society, any
member of the society may proceed with the dispute under the
provisions of the Arbitration and Conciliation Act, 1996 (Central Act
26 of 1996), or may file an application in the District Court
concerned and the said Court shall after necessary inquiry pass
such order as it may deem fit."
25) A careful reading of the aforesaid Section makes it manifest
that any dispute arising among the Committee or the members of
the Society, in respect of any matter relating to the affairs of the
society, any member of the said society may either proceed with
CMR, J.
W.P.No.8696 of 2022
the dispute under the provisions of the Arbitration and
Conciliation Act, 1996, or can file an application in the District
Court concerned and the said Court, after necessary inquiry, may
pass appropriate orders as it may deems fit. The expression "any
dispute" is wide enough to cover even the disputes relating to
election of the members of the committee. So, any dispute arising
among the committee, albeit, it be a dispute pertaining to the
election of office bearers of the Executive Committee, squarely falls
within the expression "any matter relating to the affairs of the
society" as has been used in Section 23 of the 2001 Act. The
expressions "any dispute" and "any matter relating to the affairs of
the society" are too wide enough even to cover the election dispute
relating to the election of the office bearers of the Executive
Committee or any matter relating to the affairs of the society.
Even an election of office bearers of the Executive Committee
relates to the affairs of the Society. Therefore, when the petitioner
being the member of the said 2nd respondent Association is
aggrieved by the decision of the Election Officer, in rejecting his
nomination, he has to challenge the said decision or election only
by way of making an application under Section 23 of the A.P.
Societies Registration Act, 2001, before the District Court
concerned. Section 2(d) of the 2001 Act defines 'Court' which
CMR, J.
W.P.No.8696 of 2022
means in the cities of Hyderabad and Secunderabad, the City Civil
Court, and elsewhere, the Principal Civil Court of original
jurisdiction.
26) Therefore, as the dispute is arising out of the members of the
committee and as it is touching the affairs of the society in the
matter of election of office bearers of the 2nd respondent
Association, it is purely the dispute inter se the members of the
2nd respondent Association. So, a private law remedy is involved
in the lis and no public law remedy is involved in the lis. So, the
petitioner cannot invoke the extraordinary jurisdiction of this
Court under Article 226 of the Constitution of India and seek a
writ of mandamus as prayed for in this Writ Petition. Simply
because the State Government has accorded permission to one of
the employees of the Secretariat, to act as Election Officer on the
request made by the 2nd respondent Association, it does not
involve discharge of any sovereign function or a public function or
a statutory duty to invoke the writ jurisdiction. Even the validity
of the appointment of the Election Officer to conduct the election
of office bearers of the Association, can also be challenged by way
of filing an application before the concerned District Court.
CMR, J.
W.P.No.8696 of 2022
Therefore, the writ is not legally sustainable and maintainable in
the given facts and circumstances of the case.
27) In this context, it is apt to consider in the present facts of
the case, the ratio laid down by the Apex Court in the case of
Kulchhinder Singh4. The Apex Court while dealing with a Writ
Petition arising out of a civil litigation held as follows:
"We fail to see how a supplier of chalk to a government
school or cheese to a government hospital can ask for a
constitutional remedy under Article 226 in the event of a breach of a
contract, bypassing the normal channels of civil litigation. We are
not convinced that a mere contract agreeing to a quota of
promotions can be exalted into a service rule or statutory duty.
What is immediately relevant is not whether the respondent is State
or public authority but whether what is enforced is a statutory duty
or sovereign obligation or public function of a public authority.
Private law may involve a State, a statutory body, or a public body
in contractual or tortious actions. But they cannot be siphoned off
into the writ jurisdiction."
Although the facts of the above referred case are different, the
principle of law laid down in the aforesaid judgment applies to the
present facts of the case.
28) Be that as it may, even otherwise, when once the election
process commenced by way of issuing notification for the conduct
of election, even to challenge the decision of the Election Officer in
improperly rejecting the nomination, writ is not the appropriate
CMR, J.
W.P.No.8696 of 2022
remedy and the said decision has to be challenged only by way of
filing an Election Petition after the result of the election is declared
and challenge the validity of the said election.
29) The legal position in this regard is also well settled. Way
back in the year 1952 itself, the Apex Court in the case of N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency,
Namakkal, Salem District6 held that once the election process
starts, it would not be proper for the Courts to interfere with the
election process. Similar view was taken by the Supreme Court in
the case of Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of
Maharashtra7. Following the law laid down in the aforesaid
judgments, the Supreme Court again in the case of Shaji K
Joseph5 held at para.14 as follows:
"14. In our opinion, the High Court was not right in interfering
with the process of election especially when the process of election
had started upon publication of the election program on 27 th
January, 2011 and more particularly when an alternative statutory
remedy was available to respondent No.1 by way of referring the
dispute to the Central Government as per the provisions of Section
5 of the Act read with Regulation 20 of the Regulations. So far as
the issue with regard to eligibility of respondent No.1 for contesting
6 AIR 1952 SC 64
7 (2001) 8 SCC 509
CMR, J.
W.P.No.8696 of 2022
the election is concerned, though prima facie it appears that
respondent No.1 could contest the election, we do not propose to go
into the said issue because, in our opinion, as per the settled law,
the High Court should not have interfered with the election after the
process of election had commenced."
30) As per the facts of the above referred judgment also, eletion
was held for the post of member to the Dental Council of India.
The nomination of the petitioner in the said case was also rejected
by the Returning Officer. When the aggrieved person filed Writ
Petition challenging the said decision of the Returning Officer in
not accepting the nomination of the petitioner therein, the Apex
Court held that once the election process had commenced that the
Court should not interfere with the election process. The Supreme
Court clearly held that as per the settled position of law that
whenever the process of election starts, normally, Courts should
not interfere with the process of election for the simple reason that
if the process of election is interfered with by the Courts, possibly
no election would be completed without Court's order. Very often,
for frivolous reasons, candidates or others approach the Courts
and by virtue of interim orders passed by the Courts, the election
is delayed or cancelled and in such a case the basic purpose of
having election and getting an elected body to run the
administration is frustrated. For the aforestated reasons, the
CMR, J.
W.P.No.8696 of 2022
Supreme Court has taken a view that all disputes with regard to
election should be dealt with only after completion of the election.
31) In a way, the Supreme Court held that "so far as the issue
with regard to eligibility of respondent No.1 for contesting the
election is concerned, though prima facie it appears that
respondent No.1 could contest the election, we do not propose to
go into the said issue because, in our opinion, as per the settled
law, the High Court should not have interfered with the election
after the process of election had commenced."
32) The ratio laid down in the above referred judgments of the
Supreme Court squarely applies to the present facts of the case.
In the instant case also, prima facie, it appears that the petitioner
is entitled to contest the election as his name is clearly found in
the final voters lit. Only on a very trivial ground that the serial
number mentioned by him in the nomination form against his
name is not tallying with the serial number in the voters list, his
nomination appears to have been rejected eventhough his name is
clearly found in the final voters list. However, in view of the law
laid down by the Apex Court in the above referred judgments, the
High Court should not interfere in the process of election and the
remedy of the petitioner is only by way of challenging the said
CMR, J.
W.P.No.8696 of 2022
decision of the Election Officer after completion of election by filing
an appropriate application to that effect in the appropriate forum.
33) Even the erstwhile High Court of Andhra Pradesh, in the
case of All India SC and ST Railway Employees Association v.
E. Venkateshwarlu8 held that person, who intends to challenge
the election held for a registered society, has to do so by filing an
application under Section 23 of the A.P. Societies Registration Act,
2001, and the Writ Petition is not maintainable.
34) That was a case where election was held for All India SC and
ST Railway Employees Association. Writ Petition was filed seeking
mandamus to order for re-election according to bye-laws after
cancelling the elections held on 10.01.2003 and also sought
direction to respondent No.7 therein not to recognise the elected
members and office bearers and to conduct fresh elections
according to bye-laws.
35) The Court held that the petitioner Association is registered
under the Societies Registration Act, 1860, which stood repealed
by Section 32 of the A.P. Societies Registration Act, 2001 and
8 2003 (2) ALD 384 = 2003 (3) ALT 674
CMR, J.
W.P.No.8696 of 2022
Section 32(2) of the 2001 Act lays down that notwithstanding the
repeal of 1860 Act, anything done or action taken under that Act
shall be deemed to have been done or taken in exercise of the
powers conferred by or under the 2001 Act, as if the said Act was
in force on the date on which the thing was done or action was
taken. Therefore, the petitioner-Association should be deemed to
have been registered under the A.P. Societies Registration Act,
2001. It is held that if the election held for that Society is not in
accordance with its bye-laws, person aggrieved by those
irregularities has to file a petition, questioning the elections held
to its Governing Body. So, any member of the Society, who is
aggrieved in respect of the election of the Association that was
conducted, has a right to move the District Court concerned under
Section 23 of the 2001 Act, which is an effective remedy provided
by the Statute. Further held that when an effective alternative
remedy is available, the jurisdiction of this Court under Article
226 of the Constitution of India cannot be invoked. The ratio laid
down in the aforesaid judgment also squarely applies to the
present facts of the case.
36) Thus, from the law expounded in the above cited judgments,
the legal position is crystal clear that a member of an Association,
CMR, J.
W.P.No.8696 of 2022
which is registered under the A.P. Societies Registration Act,
2001, who is aggrieved by the process of election conducted to
elect the members of the Executive Committee, cannot invoke the
jurisdiction of this Court under Article 226 of the Constitution of
India and he has to only file an application under Section 23 of
the 2001 Act in the District Court concerned. The legal position is
also made clear that when once the election notification is issued
and election process commenced, the Courts should not interfere
in the process of election even in the cases where blatant illegality
was committed by the Election Officer/ Returning Officer in
improperly rejecting or accepting the nomination papers even
without hearing the aggrieved person. The only remedy available
to the aggrieved person is to challenge the validity of the said
election after election process is completed and result of the
election is declared.
37) The judgment relied on by the learned counsel for the
petitioner in Whirlpool Corporation case1 is not applicable to the
present facts of the case. That was not a case relating to election
dispute. Further, it was held in it that in view of the self-imposed
restrictions by the High Court that when an effective and
efficacious remedy is available that the High Court would not
CMR, J.
W.P.No.8696 of 2022
normally exercise its jurisdiction and the said bar will not operate
atleast in three contingencies, viz., (i) where the Writ Petition has
been filed for the enforcement of any of the fundamental rights; or
(ii) where there has been a violation of the principle of natural
justice; or (iii) where the order or proceedings are wholly without
jurisdiction or vires of an Act is challenged.
38) Relying on the ratio laid down in the above judgment,
learned counsel for the petitioner would contend that right to
contest election is a fundamental right and as the said
fundamental right of the petitioner, which is vested in him, is
denied by improper rejection of his nomination form, that to
enforce the said fundamental right that the present Writ Petition
is maintainable.
39) The said contention has absolutely no merit. Right to contest
election is not a fundamental right. It is only a statutory right.
Therefore, it cannot be said that the fundamental right of the
petitioner is violated and seeking enforcement of the same that the
present Writ Petition is maintainable.
CMR, J.
W.P.No.8696 of 2022
40) In the case of Jyoti Basu v. Debi Ghosal9, the Apex Court
after considering the earlier precedents held at para.8 of the
judgment as follows:
"8. A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common
law right. It is pure and simple, a statutory right. So is the right to
be elected. So is the right to dispute an election. Outside of statute,
there is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and therefore,
subject to statutory limitation."
41) Relying on the said judgment, again, in the case of
Vishwanath Pratap Singh v. Election Commission of India,
very recently, the Supreme Court in the judgment rendered in
Special Leave to Appeal (C) No.13013/2022, on 09.09.2022, held
that the right to contest an election is neither a fundamental right
nor a common law right. It is a right conferred by a statute.
42) Therefore, the contention of the learned counsel for the
petitioner that the right to contest election is a fundamental right
and that in view of the law laid down in the Whirlpool
Corporation case1, relied on by the petitioner, that the Writ
9 (1982) 1 SCC 691
CMR, J.
W.P.No.8696 of 2022
Petition is maintainable is legally unsustainable and cannot be
countenanced.
43) Therefore, the Writ Petition questioning the decision of the
3rd respondent Election Officer in rejecting the nomination of the
petitioner and seeking to interdict the process of election is not
maintainable under law. The petitioner has to seek redressal of
his grievance by way of filing an application under Section 23 of
the A.P. Societies Registration Act, 2001, in the concerned District
Court.
44) Resultantly, the Writ Petition is dismissed as not
maintainable.
45) However, the writ petitioner is at liberty to file an application
under Section 23 of the A.P. Societies Registration Act, 2001, in
the concerned District Court after the result of the election is
declared. As the petitioner was deprived of his right to contest the
election on account of rejection of his nomination form, which in
the view of the writ petitioner is improper rejection, if found to be
true, on fact, would materially vitiate the result of the election, in
the event of the writ petitioner filing any such application under
Section 23 of the A.P. Societies Registration Act, challenging the
CMR, J.
W.P.No.8696 of 2022
legal validity of election, the concerned District Court shall
expeditiously dispose of the said application, within six months
from the date of filing the said application, without fail. Interim
order granted earlier stands vacated. No costs
The miscellaneous petitions pending, if any, shall also stand
closed.
________________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date:28.09.2022.
Note:
L.R. copy to be marked.
B/O
cs
