Andhra Pradesh High Court - Amravati
Grandhi Vara Prasad, vs The State Of Andhra Pradesh, on 31 March, 2022
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY
WRIT PETITION No.23161 OF 2021
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India seeking the relief as follows;
"..to issue an appropriate writ order or direction preferably a writ in the nature of Mandamus declaring the continuation of the 7th respondent as Member of the 6th Respondent Society or his appointment as Chairperson to the Non-Official Person-in-Charge Committee of the said Society as illegal arbitrary and contrary to the provisions enshrined under the Andhra Pradesh Cooperative Societies Act 1964 and the Rules made there under and consequently set aside G.O.Rt.No.371 Agriculture and Cooperation (Coop.II) Department, dated 30.06.2021 issued by the 1st Respondent to the extent of appointing the 7th Respondent as Chairperson to the Non-Official Person-in-Charge Committee of the 6th Respondent Society and consequential Proceedings Rc.No.576/2019B, dated 01.07.2021 issued by the 5th Respondent and G.O. Rt. No. 512 Agriculture and Cooperation Coop II Department dated 30,07,2021 issued by the 1st Respondent to the extent of extending the term of the 7th Respondent as Chairperson to the Non-Official Person-in- Charge Committee of the 6th Respondent Society from 30.07.2021 to 31.10.2021 respectively or till the conduct of elections or till further orders..."
2. The facts, in brief, as set out in the affidavit filed in support of the Writ Petition are as follows:
The petitioner is member of Seetharamapuram Primary Agricultural Co-operative Society-respondent no.6 2 herein. He is interested in its well-being. The respondent no.7 herein who has no agricultural land at present but converted his land of Ac.0.52 cents, Ac.0.04 cents and Ac.0.56 cents bearing Survey Nos.725-1B, 725-1C and 725-2C1-2 respectively situated at Kopparru village into fish tanks, continued to be a member of respondent no.6 society and availing crop loan facility from time to time. He is not eligible to be a member and also he is disqualified for to be a member of the respondent no.6 society. Further it is stated that while the tenure of elected bodies of several societies in the State is coming to an end by 30.7.2021 the State Government took a policy decision to constitute Person-in-Charge Committees for managing the Cooperative Societies by issuing G.O.Rt.No.371, dated 30.6.2021 and it is initially for a period of one month, which is followed by proceedings of respondent no.5 in Rc.
No. 576/2019B, dated 01.07.2021 where under respondent no.7 herein was appointed as Chairperson with two (2) other members for respondent no.6 society and it is up to 30.7.2021. Then the petitioner submitted a representation dated 28.6.2021 to the authorities, that respondent no.7 suffered disqualification even to be a member of the society and that he is involved in criminal case vide Crime No.134 of 2013 registered by the Station House Officer, Mogalthuru Police Station on the report given by Bank for playing fraud 3 in presenting forged cheques etc., and that he committed several irregularities. But the authorities did not take action. On the other hand, it is also stated by the petitioner that, the State Government took further decision to continue the Non-Official Person-in-Charge Committees for another period of three (3) months under G.O.Rt.No.512, dated 30.7.2021 or till conduct of elections or till further orders, whichever is earlier. Accordingly, tenure of respondent no.7 is continued as Chair person to the Non-Official Person-in-Charge Committee of respondent no.6 herein. It is nothing but politically motivated decision taken by the authorities in appointing respondent no.7 as Chairperson, which is not at all permissible and it is perpetuating illegalities, violating the provisions of law and as such the impugned proceedings are liable to be set aside, keeping in view the Rule of law as enshrined under A.P. Cooperative Societies Act and Rules made there under.
3. The 5th respondent filed his counter on behalf of respondents 1 to 4 and for himself and denied the petition averments. It is specifically stated that the Secretary of the respondent no.6/Secretary addressed a letter to him the respondent no.5 herein. For which, he was informed that the Station House Officer, Mogalthuru Police Station has verified the records and found the respondent no.7 herein is not involved in any criminal case relating to Mogultur 4 Police Station and as such the respondent no.7 did not suffer from any disqualification to be member as well as Chairperson of respondent no.6 Society. It is also stated that at the time of admission of respondent no.7 as a Member in respondent no.6 Society he possessed agricultural land and he was cultivating the same. It is further stated that that agricultural land means not only fit for paddy cultivation but also fit for cultivation of other crops namely fish, prawns, turmeric, sugarcane and tobacco etc., and that the District Level Technical Committee of District Co-Operative Central Bank Limited, Eluru has approved financial help for cultivation of the above crops in the Spl. DLTC meeting held on 20.4.2021 and that Village Revenue Officer, Kopparru issued Possession Certificate on 05.10.2021 relating to the lands of respondent no.7 and it is for an extent of Ac.1.12 cents and the said land is pledged in favour of respondent no.6-Society as per Form-1B Revenue Records the ROR issued by the Tahsildar, Narsapur, dated 25.08.2021. It is denied that respondent no.7 is having any political affiliation.
It is further stated that in view of the onset of monsoon, Khariff activities such as pre-positioning of fertilizers, seeds and pesticides and also disbursal of crop loans are required to be attended immediately and that 5 conducting of elections to the cooperative bodies would take some more time because of pandemic situation, the Government reviewed the matter in detail and after careful examination authorised the Commissioner for Cooperation and Registrar of Cooperative Societies to take necessary action to consider re-appointment of suitable Non-Official three member Persons-in-charge to the PACS as was done before the Model Code of Conduct issued G.O.Rt. No.512, dated 30.7.2021 in continuation of G.O.Rt.No.371, dated 30.6.2021 to manage the affairs of the Society as permitted under Section 123 of the Act, 1964.
Thus it is stated that the interim order passed by this Court in I.A.No.1 of 2021 suspending the operation of G.O.Rt. No.512, dated 30.7.2021 and also the proceedings of the respondent no.5 in Rc. No. 576/2019B, dated 01.07.2021 may please be vacated.
4. Respondent No.7 filed his counter denying the writ petition averments. It is his case that he committed fraud by forging cheques and thereby the bank authorities lodged complaint and the police registered a case in Crime No.134 of 2013 against him and he committed several irregularities etc., are all absolutely false. It is stated, in fact it is he that gave report to the police on 4.09.2013 basing on which, the Crime No.134 of 2013 was registered and the police after investigation filed charge-sheet even in respect of another 6 Crime No.133 of 2013 against C.H. Kiran Kumar and 6 others, wherein he was cited as a witness. Thus, the petitioner made fraudulent allegation with dishonest intention in his affidavit filed in support of writ petition and it is only to defame him and as such the petitioner is liable to be prosecuted for perjury. It is stated that he did not suffer any disqualification to be a member of respondent no.6 society and the said factum of whether he has agricultural land or not cannot be decided by this Court under Article 226 of the Constitution of India. It is also stated so long as he is continuing as a member of the respondent no.6 Society, he is entitled, eligible and qualified to be appointed as Chairperson of the Non-official Person-in-Charge Committee and as such he was appointed so, under G.O.Rt.No.371, dated 30.6.2021 and the Consequential Memo dated 01.7.2021. It is further stated that the petitioner did not challenge the appointment of the other two members of the Committee of respondent no.6 society nor challenged the appointment of Committees to other societies under the impugned G.O. and therefore the writ petition is not maintainable. It is also specifically stated that the impugned G.O. was not issued by yielding to political pressure as alleged by the petitioner, but it was issued in pursuance of the policy decision taken by the Government. Thus, it is prayed to vacate the interim order 7 dated 08.10.2021 passed in I.A.No.1 of 2021 and also dismiss the writ petition.
5. The petitioner filed reply affidavits for both the counters filed by respondent no.5 and respondent no.7 with one and the same averments and thus it is suffice to refer them together. It is once again stated that respondent no.7 has no agricultural land either of his own or taken on lease and that aquaculture which activity which he is carrying on comes within the A.P. State Aquaculture Development Authority Act, 2020 (for short „ the Act, 2020) and it amounts to business activity. It is further stated that mere entries in the revenue records will not reveal the nature of the land. It is stated he has questioned and challenged both the G.O.s i.e., G.O.Rt.No.512, dated 30.7.2021 and G.O.Rt.No.371, dated 30.6.2021. It is further stated that during Covid-19 Pandemic also, several elections for State Assembly, Local bodies namely Gram Panchayat, Municipalities, MPTC and ZPTC were held and hence, Pandemic cannot be a ground not to conduct elections to the Cooperative Societies and to appoint Persons-in-Charge Committee, which is nothing but a political appointment. Therefore, it is prayed that the writ petition may be allowed.
6. Heard Sri V. Satyanarayana Nekkanti, the learned counsel for the petitioner and the learned Government 8 Pleader appearing for the respondents 1 to 5 and Sri K. Chidambaram, learned counsel appearing for the respondent no.7.
7. The contention of the learned counsel for the petitioner is that the petitioner is a member of the 6th respondent society and he is challenging the appointment of 7th respondent, who is appointed as Chair person of the Non-official Person-in-Charge Committee on the ground that the 6th respondent society tenure came to an end by 30.7.2021 and that by virtue of G.O.Rt.No.512 Agricultural and Cooperation (Coop.II) Department, dated 30.7.2021, the term of the 7th respondent as Chair person to the Non-official Person-in-charge Committee was extended from 31.7.2021 to 31.10.2021 or till the conduct of elections or till further orders. Learned counsel for the petitioner relies upon Section 123 of the Andhra Pradesh Co-operative Societies Act, 1964 (for short „the Act 1964‟) and he contends that while appointing a member of the Society or President or Person-in-Charge, it is essential that the authorities have to pass an order and the authorities should record the reasons, but, on perusal of the order passed by the authorities it is clear that no reasons are recorded.
Section 123 of the Act, 1964 reads as follows; Power to exempt class of societies:-- [Rule 67) 9 "The Government may, by general or special order and for reasons to be recorded therein, exempt any society or any class of societies from any of the provisions of this Act."
8. This Court has perused the order passed by the authorities vide G.O.Rt.No.512 Agricultural and Cooperation (Coop.II) Department, dated 30.7.2021. The Government has reviewed the matter in detail in the light of the current pandemic situation and after careful examination of the matter, authorised the Commissioner for Cooperation and Registrar of Cooperative Societies, Andhra Pradesh, Guntur to take necessary action to consider to reappoint suitable Non-Official three member Person-in-Charge to the PACS as was done before the Model Code of Conduct, with modifications if any needed in the PIC due to local exigencies like death/resignation/compliance to eligibility criteria and subject to satisfaction of their credential, to the concerned PACs to manage its affairs under Section 32(7)(i), 32(7)(a)(ii) and by exempting 32 (7) (a) (ii) under Section 123 of the APCS Act, 1964.
9. The Government have reviewed the matter in view of pandemic. In view of the nation wide grim situation caused by Covid-19 Pandemic, the question of conducting elections during the relevant point of time is unjustified. It is difficult for the Government to conduct elections during 10 the surge of the Pandemic at relevant point of time. In view of the same, the Government thought it to be fit to extend the period of Person-in-Charge by way of G.O.Rt.No.512 Agricultural and Cooperation (Coop.II) Department, dated 30.7.2021. The learned counsel for the petitioner relied upon the judgment in The State of Andhra Pradesh Vs. Multicoops' Association, Hyderabad1 and referred to paragraph Nos.13 to 15, which reads as hereunder;
"13. In our view, this provision is meant to meet extraordinary situations, to be used not in a casual way or with ulterior motives, and should be resorted to sparingly and under exceptional circumstances, not for such purpose like avoiding elections for indefinite periods, as is indicative of the expression "until further orders" used in the impugned Government Order, dated 4-7-1985. The object of conferring this power on the Government is to help the societies in times of distress when they are not in a position to fulfil statutory obligations. The history and evolution of the co-operative movement in the world in general, and in India in particular, would convince that the intendment of the legislature is to put the co-operatives on a firm footing to be run according to democratic norms, administered and developed by the members themselves guided by their elected representatives who constitute the Managing Committee, without being unduly interfered or even influenced by outside agencies 1 1986 SCC Online AP 218 11 including the Government, which is expected to give them a helping hand and guidance for its growth and development to serve people at the grass root level and to sub serve, not subvert, the objects set before the movement. The tendency on the part of the Government to usurp the functions of the elected committee by the appointment of Government persons-in-charge has to be deprecated in strong terms as it would in the long run destroy the very spirit behind the principles and ideals underlying the cooperative movement. No Government wedded to democratic principles enshrined in our Constitution and committed to take the nation to the goal of social justice in accordance with the directives contained in Part-IV of the Constitution could covertly or overtly attempt to convert the autonomous bodies like the co-operative societies virtually into a Government department. If the Government develop allergy for election to the co-operative societies, it would be a serious blow to the great movement which had gained momentum over the years. They would be as good as dead if the societies are to be run by the Government nominees, not by the elected representatives of the societies.
14. The discretionary power to be exercised under Section 121 of the Act has to be understood and applied bearing in mind the true purpose and objective of the statute, as it is a well-settled principle that the delegated power or power of subordinate legislation could not be so exercised to run counter to the objective sought to be achieved by the 12 statute expressly or by necessary implication. May be, the manner in which the discretion is to be exercised by the authority on which such power is conferred by a particular provision in the statutes, might, not be possible to be enumerated exhaustively. All the same, it is for the authority exercising such power to do so in a judicious manner, and where there is failure on the part of such authority to do so fairly and in a just manner, keeping in view the policy behind the legislation, courts may have to intervene. In this context, it would be profitable to recall what Subba Rao, J., (as he then was) speaking for the Constitution Bench of the Supreme Court stated (in para 7 at page 374) in Gopal Narain v. State of U.P.3 "In this context, because of a Legislature's reluctance or inadvertence to express itself clearly of its policy, a heavy and difficult burden is often placed on courts to discover it, if possible, on a fair reading of the provisions of the Act. Some Acts expressly lay down the policy to guide the exercise of discretion of an authority on whom a power to classify is conferred. Some Acts, though they do not expressly say so, through their provisions may indicate clearly, by necessary implication, their policy affording a real guidance for the exercise of discretion conferred on an authority there under. While a court should be on its guard not to enter into the domain of speculation with a view to cover up an obvious deficiency in a legislation, it may legitimately discover such a policy, if it is clearly 13 discernible on a fair reading of the relevant provisions of the Act".
15. On a careful consideration of the scheme of the Act, we have no doubt in our minds that the dominant purpose behind the Act is to generate a spirit of co-operation among the people, particularly the agriculturists and artisans, to promote self help and team-spirit in them and, above all, to impart training in the sphere of administration of institutions and organisations on democratic lines.
Sections 25 to 32 of the Act in particular, take care of the objectives to be achieved, by laying down qualifications for the exercise of vote, which is also restricted to one for one person in contrast to right to vote being based on the number of shares held in the case of companies, The guiding principles governing the co-operative societies are too well-known to require a detailed examination of the various provisions in the Act to establish that the control and administration in a democratic way through the elected representatives is the soul and spirit of these ideals. D.A. Desai, J., in Sriram Pyare Choudhary v. State of U.P.4 in para 12 at p. 836 observed as follows:
"Further, the elections to panchayats co- operative societies and smaller local bodies provides an apotheosis or a training ground for success of our larger experiment of parliamentary democracy. Election process is sacrosanct. Members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutory terms. Such a drastic power of removing elected representatives before the 14 expiry of term and substituting non-elected persons roust receive strict and narrow interpretation at the hands of the Courts. If allowed to foster it would be the negation of the democratic process and would engulf the whole fabric of democratic institutions which we are trying to build up"".
There is no dispute with regard to the principle laid down in the above judgment.
10. It is pertinent to mention here in view of the nation wide grim situation caused by Covid-19 Pandemic, it is difficult for the Government to conduct elections, and in view of the same, the order which was passed earlier in appointing the respondent no.7 as Person-in-Charge has been extended for a further period of three months. This Court hence is of the firm view that there is absolutely no illegality in passing the said order.
11. The other contention of the learned counsel for the petitioner that the respondent no.7 herein is involved in Criminal Case is concerned, it is denied by the respondents all and there is no proof brought on to the record that a Crime was registered and pending against the respondent no.7.
12. The next contention raised by the petitioner is that the respondent no.7 as Chairperson of the Non-official Person-in-Charge Committee of the respondent no.6 society 15 has no agricultural land in the name of the respondent no.7. In fact the respondent no.7 is having fish tank in R.S. No.725-1B to an extent of Ac.0.52 cents, R.S. No.725-1C to an extent of Ac.0.04 cents, RS No.725-2C1-2 to an extent of Ac.0.56 cents total extent of Ac.1.12 cents situated in Kopparru Village, Narasapuram Mandal, West Godavari District. Basing on the said land, the respondent no.7 obtained membership in the 6th respondent Society and also availed crop loan from the 6th respondent Society. Later the 7th respondent converted the agricultural land into fish tank and it was a long back
13. Learned counsel for the petitioner further stated that the said Kopparru village where the land of the respondent no.7 has been situated does not come within the purview of Seetharamapuram society and he is not even eligible to be a member of such society. Learned counsel for the petitioner sought to rely upon some documents, which show that the 7th respondent‟s land falls within the limits of Kopparru village but not in Sitaramapuram limits, where the society is situated. Learned counsel for the petitioner further relies upon the judgments of High Court of Andhra Pradesh and High Court of Madras in P.Chandra Rddy Vs. Government of Andhra Pradesh2 and Eshwar 2 2002 (2) A.P.L.J.487 (HC) 16 Purushothaman Gardens Vs. Authorised Officer, Indian Bank.
14. Learned counsel for the petitioner also relies upon the provisions of the Andhra Pradesh State Aquaculture Development Authority Act, 2020. He relies upon Section 3(2) of the said Act. It reads as follows;
"Aquaculture Business Operations" means all the operations/activities undertaken for carrying out Aquaculture business;"
Relying upon the said provisions, learned counsel for the petitioner also contends that aquaculture business operations would not come within the purview of the agricultural land and the operations of aquaculture squarely falls within the ambit of Aquaculture Development Authority Act, 2020, but does not fall within the purview of Revenue laws.
15. Learned counsel for the petitioner also relies upon the judgment of this Court in Alla Sanyasi Rao Vs. Bank of India3, wherein it is held that when any person undertakes to do the business of sea food, the business may be treated as an industry ancillary to pessy culture, but it cannot be treated that the land is being used for agriculture. Learned counsel for the petitioner also relies upon the various provisions of the Act and submitted that 3 2020 SCC Online AP 139 17 the 7th respondent is not entitled to continue as Chair person of the committee of the 6th respondent society.
16. However, the learned counsel for the respondent no.7 relies upon Section 21 (3) of the Act,1964. Section 21 (3) of the Act reads as follows;
"Where any person, who is not eligible for being admitted as member has been admitted as member or where the member who is disqualified to continue as such under sub- section (I) is continued as member, he shall be removed by the General body on its own motion or on a representation made to it by any member of a society or its federal society or its financing bank: Provided that no member shall be removed under this sub- section unless he had an opportunity of making a representation against the proposed action. A copy of the resolution removing the member shall be communicated to such person and on such communication, he shall be deemed to have ceased to be a member of the society"
17. On reading of the said provision, it is crystal clear that a member can be disqualified only on the basis of a consideration by the General Body on a representation made to it or on its own motion.
18. In view of the said provision in the statute, this Court is of the view that even this Court has no power to disqualify any member of a society and it is vested power of general body of the Society.
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19. This Court also is of the opinion that so long as the respondent no.7 is a member of the society, he is eligible and qualified to be appointed as a Chairperson of the Non-Official Person-in-Charge Committee and accordingly, he was appointed by G.O.Rt.No.371, dated 30.6.2021 and consequently by memo dated 01.7.2021. In view of the said legal position, this Court has come to the conclusion that there is no illegality or irregularity in appointing the respondent no.7 as Chair person of the 6th respondent Society. Accordingly there are no merits in the present writ petition, hence the same is liable to be dismissed. Learned counsel for the petitioner has also submitted that representations made before the General body to disqualify on the ground that he is not in a possession of any agricultural land, it is open for the petitioner to take steps for disposal of the said representation in accordance with law.
20. In view of the foregoing discussion, there are no merits in the writ petition. Hence, the Writ Petition is dismissed. No order as to costs of the Writ Petition.
As a sequel, interlocutory applications pending, if any, in the Writ Petition shall stand closed.
____________________________ K.SREENIVASA REDDY, J 31.03.2022 GR 19 204 THE HONOURABLE SRI JUSTICE K.SREENIVASA REDDY WRIT PETITION No.23161 OF 2021 31.3.2022 GR