FRIENDS CONSUMERS CO OP STORES Vs. ELECTION OFFICER

JUDGEMENT

(1.) 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 aforesaid 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 The valid list of 24 nominations was published out of which 12 had withdrawn, leaving 12 members in the field.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, four 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 acccording 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 bold 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 Bye-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 Bye-law which has been duly approved and registered. Further it is stated for the petitioners that the amended Bye-law is not inconsistant with the Act. It is wholly in harmony with the tenner 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.

(2.) On the other hand, Mr. Venkataramanayya, appearing for the conesting 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 guaranweteed 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 under Section 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 elegible to vote, it becomes part of his duty to decide who are the members that are eligible to vote. Indeciding tbat 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 tbat the petitioner had 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.

(3.) 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 substantialiy based upon the ground of validity of bye-law No. 4?