Andhra Pradesh High Court reiterated that right to contest election is only a statutory right and not fundamental right.
The single-judge bench of Justice Cheekati Manavendranath Roy in view of Andhra Pradesh Societies Registration Act, 2001 dismissed the writ petition of an employee in the Revenue Department as 'non-maintainable'.
Brief Facts of the Case
It was the petitioner's case that his nomination for the post of Secretary in the elections for office bearers of the Executive Committee of the Andhra Pradesh Secretariat Section Officers' Association was rejected despite his name being mentioned in the voter-list.
He alleged that respondent-Election Officer didn't approve of his nomination on the ground that his name didn't tally with the serial number in the voters list that was published which he claimed is factually incorrect.
He thus filed the present-petition 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.
High Court's Observation
The Court at the outset noted that 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 but the material on record makes it abudantly clear that it is not the case and the said Act and the Rules made thereunder has absolutely no application to the present lis.
In furtherance, the Court went on to deliberate as to 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 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.
The Court opined that the dispute squarely falls within the ambit of Section 23 of the A.P. Societies Registration Act, 2001.
"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 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."
The Court ruled that 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
"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."
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, the Court added.
Therefore, the writ is not legally sustainable and maintainable in the given facts and circumstances of the case.
Noting that 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 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, the Court referred to N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency & Ors, 1952 Latest Caselaw 2 SC,
The Court also mentioned Jyoti Basu & Ors Vs. Debi Ghosal & Ors, 1982 Latest Caselaw 26 SC to reassert that the right to contest an election is neither a fundamental right nor a common law right but only a right conferred by a statute.
CASE TITLE: C.Vasudeva Rao vs State of A.P.
CASE DETAILS: Writ Petition No.8696 of 2022
CORAM: Justice Cheekati Manavendranath Roy
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