Andhra HC (Pre-Telangana)
L.Shivashankar Reddy. Revision vs The Government Of Andhra Pradesh, ... on 19 March, 2014
Author: A. Rajasheker Reddy
Bench: A. Rajasheker Reddy
HONBLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.17131 of 2013 19-03-2014 L.Shivashankar Reddy. Revision Petitioner The Government of Andhra Pradesh, Represented by its Special Chief Secretary and 59 others. Respondents Counsel for petitioner: Sri E. Manohar, Senior Counsel Counsel for respondent: Sri K.G. Krishna Murthy, Additional Advocate General <Gist: >Head Note: ?Cases referred: 1) AIR 1967 Supreme Court 437 2) (2013) 3 Andhra Law Times 759 3) (2008) 3 Supreme Court Cases 512 4) (2008) 7 Supreme Court Cases 11 5) (2010) 13 Supreme Court Cases 467 6) (2011) 8 Supreme Court Cases 441 7) (2013) 3 Andhra Law Times 715 8) (2001) 8 Supreme Court Cases 509 9) (2004) 1 Supreme Court Cases 133 10) (2005) 7 Supreme Court Cases 181 11) 2013 Law Suit (AP) 231= 2013 (4) ALD 265 12) 2011 (1) Andhra Law Decisions 292 13) 2007 (3) Andhra Law Decisions 197 14) (2001) 8 Supreme Court Cases 509 15) (2000) 8 Supreme Court Cases 216 16) AIR 1978 Supreme Court 851 (1) 17) (2000) 8 Supreme Court Cases 46 18) (2005) 8 Supreme Court Cases 383 19) (1998) 8 Supreme Court Cases 703 20) (2004) 1 Supreme Court Cases 133 21) (2005) 7 Supreme Court Cases 181 22) 1991 (3) Supreme Court Cases 38 23) AIR 1976 Supreme Court 437 24) 2014 (1) Andhra Law Times 73 HONBLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.17131 of 2013 Date: 19-03-2014 ORDER:
This writ petition is filed for declaring G.O.Rt.No.839, Agriculture & Cooperative (Coop.VI) Department, dated 14-06-2013 issued by the 1st respondent and the consequential proceedings Rc.No.5541/2013/Election Cell, dated 14-06-2013 issued by the Registrar of Cooperative Societies, A.P., Hyderabad, the 2nd respondent and the notification dated 16-06- 2013 issued by the Election Officer, the 5th respondent as illegal and void and for consequential direction to the respondents to hold election to the Managing Committee of the District Cooperative Central Bank Limited, Ananthapur with only non-defaulter PACSs as per the provisions of the A.P. Cooperative Societies Act, 1964 and the Rules made thereunder.
2. The case of the petitioner is that the petitioner was elected as President of Gollalacheruvu Primary Agricultural Cooperative Society in the elections to all Primary Agricultural Cooperative Societies (PACS) in A.P. State including 103 PACS of Ananthapur District held in January/ February 2013. Thereafter, the 2nd respondent issued notification dated 11-02-2013 under Section 31 (3) (a) read with Rule 22-D (2)(a) and appointed the 4th respondent as the Election Officer, who issued election schedule to elect the Managing Committee of DCCB, Ananthapur. The Chief Executive Officer, District Cooperative Central Bank, who is the 6th respondent herein, furnished list of eligible members to the said Election Officer on 13-02-2013 containing 50 non-defaulter Societies prepared in accordance with the proceedings given by the 2nd respondent to all the CEOs of DCCBs vide Rc.No.3106/2013-Election Cell, dated 04-02-2013 and thereafter, the 2nd respondent postponed the election in exercise of the power under Rule 22-C (1)(iii) of the A.P. Cooperative Societies Rules, 1964 (for short the Rules) vide proceedings dated 13-02-2013. Challenging the said proceedings one of the non-defaulters viz., P. Ramasubba Reddy, President of Rachanapalli PACS filed W.P.No.5209 of 2013 and the same was disposed of directing the respondents to complete the election process within two months from the date of the order.
3. It is further stated that instead of recommencing the election process from the stage at which it was stopped as mandated by Rule 22-C
(b) of the Rules and the undertaking given to the court by the official respondents and as per the judgment dated 12-04-2013 in W.P.No.5209 of 2013, the 1st respondent in G.O.Rt.No.839, Agriculture & Cooperation (Coop.IV) Department, dated 14-06-2013 in purported exercise of the powers under Section 123 of the Act and Rules 67 and 75 (4) of the A.P. Cooperative Societies Rules, exempting the default PACS in Ananthapur District from the operation of clause (iii) of second proviso to sub-section (1) of Section 21-A and Section 21 (1-A) (d) of A.P. Cooperative Societies Act (for short the Act) and the Rule 18 (D) and 75 (2) of A.P. Cooperative Societies Rules, duly invoking the powers vested under Section 123 and Rules 67 and 67 (14) of APCS Rules to enable the default PACS to participate in the election of District Level Societies i.e. Financing Bank. It is further stated that pursuant to the said G.O., consequential order dated 14-06-2013 was passed by the 2nd respondent wherein he changed the Election Officer and authorised the 5th respondent to recommence the election process of DCCB Ltd., Ananthapur, from the stage at which it was stopped and the 5th respondent was appointed since the 4th respondent was transferred from the post of DLCO, Hindupur in May, 2013 and he was on leave and the Election Officer issued fresh election schedule. Thereafter, the Election Officer, besides issuing notification on 16-06- 2013 prepared the voters list containing 104 members including 54 default PACS. Challenging the said G.O.Rt.No.839, dated 14-06-2013 and the consequential proceedings dated 14-06-2013, the present writ petition has been filed.
4. The respondents 1 to 3 filed their counter affidavit admitting issuance of G.O.Rt.No.839, A & C Department, dated 14-06-2013, exempting the default PACS from the relevant provisions of Act & Rules to enable them to participate in the election of DCCB, Ananthapur and that the 2nd respondent issued proceedings dated 14-06-2013 to hold elections to the Managing Committee of DCCB, Ananthapur, but the said proceedings are not consequential. It is stated that the petitioner already filed nomination for DCCB election and he has not stated as to how his rights, if any, are affected by the impugned orders and that if he has any grievance with regard to electoral list, he may invoke appropriate remedies available under the A.P. Cooperative Societies Act and the same is in the realm of election dispute and the validity of the same can be gone into by the Election Tribunal. As the election process has already commenced, the petitioner cannot seek indulgence of this Court.
5. It is further stated that the lists filed by the petitioner does not bear any signature and cannot be relied on. As per the letter of the 4th respondent dated 25-05-2013 addressed to the 2nd respondent, the election process was stopped on 13-02-2013 and the voters list has to be submitted by the Chief Executive Officer to the Election Officer. Pursuant to the orders of the Division Bench dated 11-06-2013 extending the time for commencement of election by four days from 11-06-2013, the Election Officer vide proceedings dated 14-06-2013 issued orders to recommence the election process from the stage where it was stopped i.e. from the stage of preparation of list of eligible voters by the CEO and that the CEO prepared the voters list on 15-06-2013 including the default Societies, who were granted exemption by the Government vide G.O.Rt.No.839, dated 14-06-2013 after recommencement of process. It is further stated that the 2nd respondent pursuant to a representation made by the Ex-President of the DCCB called for remarks from the 3rd respondent vide letter dated 08-03-2013 and pursuant to the said letter, the 3rd respondent submitted a report dated 21-03-2013 to the effect that Ananthapur District is one of the most drought prone areas in the State and it has been facing continuous drought since two decades and declared as drought affected area and resultantly the loans extended to farming community towards agriculture and its allied activities remained unpaid, thereby all the overdue loans became NPAs and the farmers are forced to sustain on credit through financial institutions and private money lenders etc., and the debt burden is increased year after year.
6. Pursuant to the report of the 3rd respondent, the 2nd respondent vide letter dated 08-04-2013 while setting out the various aspects pertaining to the drought prone District of Ananthapur requested the Government to grant exemption to the defaulting PACSs and the Government after careful examination of the matter, while referring to the above letter based on the report of the 3rd respondent, in exercise of its powers under Section 123 of the A.P. Cooperative Societies Act, issued G.O.Rt.No.839 dated 14-06-2013 exempting any society or class of societies from provisions of the Act. Hence, he sought for dismissal of the writ petition.
7. The 52nd respondent filed its counter stating that the Government, after considering the representation submitted by it and others and after calling for report, passed the order, which is perfectly valid and correct. Ananthapur District is continuously declared as drought affected area and that 63 Mandals of Ananthapur district were declared as drought affected and the Government also gave directions not to pressurise the farmers to repay the loan. It is stated that due to reorganization of the societies in view of Vidyanathan Committee, some of non-viable societies were merged with the viable societies and that after merger as the societies could not recover minimum 50% of the outstanding recoveries, the societies were not given any financial benefits and that in view of the same, some of the societies have become defaulters. It is stated that the Government has taken into consideration the relevant factors and issued G.O.s and that the order of the court was directing the official respondents to conduct the elections from the stage where it was stayed and that as on the date of staying of elections, the publication of the voters list was not done and hence, the Government has power to issue the impugned G.O.
8. The 61st respondent also filed its counter stating that the elections to Managing Committee of Ananthapur District Cooperative Central Bank Limited, Ananthapur were notified by Registrar of Cooperative Societies/Election Authority vide letter dated 14-06-2013 and that in pursuance of the above orders, the Election Authority issued a notification to the posts of 21 Directors out of which 16 are earmarked for A-class societies and 5 for B-class societies. It is stated that out of 5 directors under B-class society, one is reserved for S.C., one for S.T., two for B.C. and one for O.C. and the C.E.O., Ananthapur District Cooperative Central Bank Ltd., Ananthapur, published a list of eligible B-class members as on 15- 06-2013 and the 61st respondent society stands at Sl.No.106 in the list. It is also stated that the 61st respondent filed nomination for the post of Director under B-Class under B.C. category on 17-06-2013 and there were totally three nominations filed under Backward Community comprising of nominations of the 61st respondent V. Sadanand and C. Venkat Reddy. It is further stated that the nomination of C. Venkat Reddy was rejected and the Election Officer published list of eligible nominations under Group B BC which consist of the name of the 61st respondent and V. Sadananda as per Rule 22 (5) (d) of A.P. Cooperative Societies Rules, 1964 and that as the number of eligible nominations under Group B BC category was equal to the number post reserved for this category, the Election Officer declared this respondent and V. Sadananda as having been elected unanimously on 18-06-2013 and that as on today the elections to the A-class categories is pending and that this respondent along with one V. Sadanand is already elected unanimously under B-class B.C. category and the Government has not given any exemption to delegates of default B-class category and sought for dismissal of the writ petition for non-joinder of necessary and proper parties.
9. The writ petitioner filed reply affidavit to the counter of respondents 1 to 3 stating that the impugned G.O. enabled the unqualified Societies to participate in the elections, which would affect his right as elections have to be held only with qualified societies. It is stated that the Tribunal being a creature of the statute, cannot adjudicate upon the validity or otherwise of the impugned G.O. and hence, the writ petition is maintainable. Immediately after the election notice dated 16-06-2013 was issued, the petitioner filed the writ petition and the fact that he filed the nominations after filing the writ petition would not estoop him from challenging the impugned G.O. and the consequential elections. The 52nd respondent failed to recover the dues from the members of the PACS and as the President of DCCB from the PACS and that the members and the PACSs never chose to submit representations to the Government for exercising the power under Section 123 of the Act. It is further stated that the elections to the PACS and DCCBs were held in the years 1987, 1995 and 2005 and no exemption was granted either in the year 1987 or 1995 and it was only in 2005 that the Government chose to issue an order under Section 123 of the Act exempting all the Primary Societies, DCCBs etc., from the default norm throughout the State.
10. Sri E. Manohar, learned senior counsel appearing for the petitioner submits that the 1st respondent has not recorded any reasons, while issuing the impugned G.O., by which exemption was granted, as envisaged under Section 123 of the A.P. Cooperative Societies Act, 1964 and the Rule 67 of the Cooperative Societies Rules, 1964. He contends that as per Section 123 of the Act, reasons have to be recorded in the order while granting exemption and the same cannot be supplemented in the counter. In support of his contentions, he relied on M/s. Ajantha Industries and others v. Central Board of Direct Taxes, New Delhi and others , Govt. Degree College v. Government of A.P.(W.P.No.19016 of 2012, dated 03-09-2012) . He also contends that exemption is granted only to benefit the 52nd respondent and that the Government is trying to justify exemption stating that Ananthapur District was declared as drought affected area. He further contends that G.O.M.S.No.1 Revenue dated 09-01-2013 declared 8 other Districts also as drought affected and that 10 requests were made from different Districts for exemption of the default societies, but none was accepted. He further contended that the Government has neither chosen to pass exemption order in respect of PACS where the real farming community participated nor extended the same treatment for B-Class default societies which are 410 and prepared the list of only non-default societies. He further submits that as the election process was set in motion on 11-02-2013, the eligibility criteria cannot be altered in the middle of the election process and that an undertaking was given by the respondents for recommencing and completing the election process from the stage where it was stopped. In support of his contentions, he relied on K. Manjusree v. State of Andhra Pradesh and another , Hemani Malhotra v. High Court of Delhi , State of Bihar and others v. Mithilesh Kumar and P.V. Indiresan v. Union of India and others . He also contends that the impugned G.O. was issued only to favour of the 52nd respondent and the present President of Singanamala PACS, which is a defaulter of Rs.361.98 lakhs that the impugned G.O. is wholly arbitrary and illegal frustrating the object and intendment of the Cooperative movement and there are no exceptional circumstances for passing the G.O. only in the case of Ananthapur DCCB. In support of this contention, he relied on Gayathri Degree College v. Government of A.P. He further contends that the objection of the Government that the writ petition under Article 226 of the Constitution of India is not maintainable in view of alternative remedy of Election Petition is founded on the judgment of the Apex Court reported in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another and the said decision was distinguished by the Apex Court in Ahmednagar Zilla S.D.V. & P. Sangh Ltd., and another v. State of Maharashtra and others and in Pundlik v. State of Maharashtra and others . He further contends that the objection is untenable as the validity of the impugned G.O. cannot be subject matter of election petition and the Tribunal has no power or jurisdiction to decide the validity of the impugned G.O.
11. Sri K.G. Krishna Murthy, learned Additional Advocate General, submits that the writ petition is not maintainable after issuance of election notification and the commencement of election process and that the election process was recommenced from the stage where it was stopped. He contends that by virtue of impugned G.O., the default societies are included in the voters list, which has to be submitted by the Chief Executive Officer, APCCB Limited to the Election Officer. He further submits that if the petitioner has any grievance arising out of the voters list as to the legality of inclusion or exclusion of the defaulting societies, he can approach the Election Tribunal against the same under Section 61 (3) of the Act. He further contends that many of the Mandals in Ananthapur are declared as drought affected areas and the representations were submitted for exempting them from the provisions of the Act and the reports were called for from the relevant authorities basing on which, the impugned G.O. was issued exempting defaulting societies from the relevant provisions by exercising the power under Section 123 of the Act. He further contended that the reasons are discernible from the impugned G.O. as the same is issued by considering the reports called for from the authorities. He further contends that the Government, after careful examination of the matter, issued G.O.Rt.No.839, dated 14-06-2013 exempting the default PACS from the relevant provisions of A.P. Cooperative Societies Act, 1964 to enable them to participate in the election of DCCB, Ananthapur. In support of his contentions, he relied on judgment of a Division Bench of this Court in W.A.No.844 of 2013 and W.A.No.1429 of 2013, dated 08-08-2013 and in Katta Sivaiah v. Government of A.P. and others , Dhulipalla Narendra Kumar v. A.P. Cooperative Tribunal, Vijayawada, Krishna District and others , Ch. Srinivasa Rao and another v. District Collector/Election Authority, The Cooperative Electric Supply Society Ltd., Siricilla, Karimnagar and others , Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others , Election Commission of India v. Ashok Kumar and others , Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others , Shyamdeo Pd. Singh v. Nawal Kishore Yadav , Harnek Singh v. Charanjit Singh and others and C. Subrahmanyam v. K. Ramanjaneyullu and others .
12. Sri D. Prakash Reddy, learned senior counsel appearing for the 52nd respondent submits that most of the societies in Ananthapur District are defaulting societies and most of the societies are deprived of participating in the election process due to declaration of drought affected area and many of the Mandals in Ananthapur are declared as drought areas. He also submits that basing on the representation of the 52nd respondent, reports were called for by the 1st respondent and after satisfying with the report, the Government issued the impugned G.O. exempting defaulting societies from the provisions of the Act for participating in the election. He also contends that reasons are very much discernable from the impugned G.O. and the Government applied its mind, while calling for relevant reports from the authorities for the purpose of granting exemption by exercising the power under Section 123 of the Act. He further contended that non-exemption of certain provisions is not a ground for striking down the impugned G.O. and he adopts the other contentions of the learned Additional Advocate General.
13. Learned counsel for the 61st respondent submits that the 61st respondent filed nominations for the post of Director under B-Class under B.C. Category and was elected unanimously under the said category and the impugned G.O. is not issued in relation to B-class category. He adopted the arguments of the learned Additional Advocate General and that the 61st respondent is not a defaulter. As such, her election may not be disturbed.
14. From the pleadings of the parties and the arguments advanced by the counsel on either side, the issue that arises for consideration in this writ petition is whether the exercise of power by the 1st respondent- Government under Section 123 of the A.P. Cooperative Societies Act, 1964 to exempt the provisions of the Act enabling participation of default PACS in the elections to be held to the Managing Committee of DCCB is proper and valid?
15. At the outset, the main objection raised by the learned Additional Advocate General is that the writ petition is not maintainable on the ground that the writ petitioner has an effective alternative remedy under Section 61 (3) of the Act. In the decisions relied on by the Additional Advocate General, it is held that preparation of voters list being integral part of the election and inclusion or deletion of the names from the voters list also forms part of the election process and, as such, the writ petition under Article 226 of the Constitution should not ordinarily be entertained for interdicting the same vide Katta Sivaiah v. Government of A.P. and others (11 supra), Dhulipalla Narendra Kumar v. A.P. Cooperative Tribunal, Vijayawada, Krishna District and others (12 supra), Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others (14 supra), Election Commission of India v. Ashok Kumar and others (15 supra), Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others(16 supra), Shyamdeo Pd. Singh v. Nawal Kishore Yadav (17 supra), Harnek Singh v. Charanjit Singh and others (18 supra). But, in the instant case, the challenge in the writ petition is as to the correctness of the manner in which G.O.Rt.No.839, dated 14-06-2013 was issued by the 1st respondent in exercise of statutory power under Section 123 of the Act. The Election Tribunal referred to in sub-section 61 (3) of the Act has limited jurisdiction to decide the election disputes and Section 61 (3) and (4) of the Act, reads as follows:
(3) Every dispute relating to, or in connection with, any election to a committee of a society shall be referred for decision to the Tribunal having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final.
(4) Every dispute relating to, or in connection with any election shall be referred under sub-section (3) only after the date of declaration of the result of such election.
16. The impugned G.O. enables the default societies in participating in the elections, but since the 1st respondent has issued the impugned G.O. exercising statutory powers under Section 123 of the Act, I am of the view that the Tribunal may not be in a position to adjudicate upon the same, though it is contended by the learned Additional Advocate General that the Tribunal can decide that question. Per se, the issue raised in the writ petition is not the election dispute since the challenge in the writ petition is about the manner in which the impugned G.O. was issued in exercise of power under Section 123 of the Act. Whether the 1st respondent has exercised the statutory power in accordance with law or not cannot be decided by the Election Tribunal. May be the consequence of that G.O. is that the default societies will be able to participate in the election process, I am of the view that the Election Tribunal may not be in a position to entertain the challenge about the manner of issuance of the impugned G.O., and hence, the objection raised by the learned Additional Advocate General that the writ petition is not maintainable is overruled. Even otherwise, in W.A.No.844 of 2013, the Division Bench of this Court held that the preparation of voters list is one of the integral part of election process and normally, this court would not interfere with the election process under Article 226 of the Constitution of India. The Division Bench also held that the petition under Section 226 of the Constitution of India is maintainable despite available of alternative remedy, which can be entertained under exceptional circumstances such as where the order is ultra vires or nullity.
17. In Ahmednagar Zilla S.D.V. & P. Sangi Ltd., and another v. State of Maharashtra and others , wherein it is held as follows:
..The learned counsel urged that the High Court ought not to have issued a direction for inclusion of the names of the respondents in the electoral roll in view of the fact that the preparation of the electoral roll is an intermediary stage in the process of the election and as such the High Court committed an error of jurisdiction. The learned counsel, in support, relied upon the decision of this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra1. In the said case it was held that the preparation of the voters list is an intermediary stage in the process of election of the Managing Committee and if there was breach of the rule in the preparation of the voters list, it could be called in question in an election petition after the election is over and the High Court is not required to interfere in the matter at this stage.
In Sant Sadguru Janardan Swami (2001 (8) SCC 509) this Court made the aforementioned observations keeping in view the fact therein that the voters list was prepared in terms of the extant rules but certain irregularities were committed therein, but where the voters list has been prepared on the basis of non-existent rules the same would be illegal.
In the present case, what we find is that illegal amendment of the bye-laws was challenged on the basis of which the electoral roll was prepared. Under Section 165 of the Act, the State Government has framed rules under the provisions of the Maharashtra Cooperative Societies Act and the Maharastra Specified Cooperative Societies Elections to Committee Rules, 1971. Rule 81 provides for the ground for declaring the elections to be void. A perusal of Rule 81 shows that the validity of the bye-law cannot be gone into by the Tribunal. In view of the fact that the respondents had no other remedy except to file an appeal before the Appellate Authority and once it was held that the amendment of the bye-laws was not in conformity with the law the electoral roll prepared on the basis would fall down.
and in Pundlik v. State of Maharashtra and others , wherein it is held as follows:
.We see considerable force in the contention of the learned counsel for the appellant. Bare reading of Rule 5(2) makes it abundantly clear that the society which has communicated the name of its delegate can change the name of such delegate within the period stipulated therein. It was, therefore, open to the respondent Sangh to exercise the said power in accordance with Rule 5(2) which has been done. It was the case of Respondent 2 the Collector that in the list of subjects of the meeting convened on 9-6-2005, there was no subject for sending the name of the representative for the election of the Maha Sangh and yet the representative was changed which was not proper. But the learned counsel for the appellant has rightly referred to the proceedings dated 9-6-2005, and in particular Resolution 7. It is further clear from the agenda notice dated 2-6-2005, in which it was stated that the meeting of the Board of Directors of the respondent Sangh would be held on 9-6-2005 for discussing various subjects and Subject 7 related to the fax message received from the Collector, Mumbai, Respondent 2 in connection with the election of Respondent 3 the Maha Sangh. Pursuant to the above agenda notice, a meeting was held, Subject 7 was taken for consideration and Resolution 7 was passed. By the said Resolution, it was decided that instead of the name of Respondent 7, name of the appellant will be sent as delegate and representative of the respondent Sangh and the said resolution was forwarded to Respondent 2 the Collector. He was, therefore, under obligation to effect change under Rule 5(2) of the Rules. By not acting on the resolution, Respondent 2 the Collector has acted contrary to law and the appellant was wholly justified in making complaint before the High Court and praying for exercise of writ jurisdiction under Article 226 of the Constitution..
In our opinion, the learned counsel for the appellant is also right in submitting that if the order passed by Respondent 2 is upheld, the provisions of sub-rule (2) of Rule 5 will become nugatory and otiose. When the rule-making authority conferred power on the Sangh to change the name of its representative/delegate by expressly permitting the change of representative/delegate and intimating the said fact to the Collector, such right cannot be taken away or interfered with. Since the last date as per the communication of Respondent 2 the Collector was 10-6-2005, the action of the respondent Sangh was within the four corners of Rule 5(2). The High Court was, therefore, in error in not allowing the petition and granting relief to the appellant.
18. In the present case also, the issue raised herein is the challenge as to the manner of exercising the power by the 1st respondent under Section 123 of the Act. As such, the ratio laid down in Ahmednagar Zilla S.D.V. & P. Sangi Ltd., and another v. State of Maharashtra and others (20 supra) and in Pundlik v. State of Maharashtra and others (21 supra) applies to the present case. In view of the same, the writ petition can be entertained.
19. The next issue to be considered about the non-recording of reasons in the impugned G.O. as mandated under Section 123 of the Act.
20. The impugned G.O. is issued in exercise of statutory functions and Section 123 of the Act clearly provides for recording of reasons. Though it is contended by the Additional Advocate General that the issuance of the letter of the 2nd respondent dated 08-04-2013 is based on the letter issued by the 3rd respondent, as such, it should be taken that the reasons contained in those letters form part of recording reasons in the impugned G.O. Per se, the impugned G.O. does not contain any reasons as envisaged under Section 123 of the Act. In Union of India v. E.G. Nambudiri , it is laid down that where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal.
21. In M/s. Ajantha Industries and others v. Central Board of Direct Taxes, New Delhi and others , the Apex Court, while dealing with Section 127 (1) of the Income Tax Act, held as follows:
We are clearly of opinion that the requirement of recording reasons under section 127(1) is a mandatory direction under the law and non- communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee.
22. In view of the ratio laid down, I hold that the 1st respondent, while exercising the power to exempt the default societies from the provisions of the Act, did not record any reasons as mandated under Section 123 of the Act and that on this ground alone, the impugned G.O. is liable to be struck down.
23. In the present case, the respondents 1 and 2 have undertaken to recommence the election from the stage where it was stopped pursuant to which the respondents are bound to effect to the same and after giving such undertaking the respondents have issued the impugned G.O. at the stage when the election process has started. The eligible voters as on the date of notification are entitled to be included in the voters list. In Kondaveeti Srinivasa Rao v. Government of A.P., Cooperation Department, represented by its Secretary and others , it is held as follows:
.The main plea on which this Writ Petition is filed is that the revised election schedule is contrary to the undertaking given by the learned Government Pleader, based on which, the previous Writ Petition, i.e., W.P.No.2114 of 2013, along with W.P.No.1507 of 2013, was disposed of.
Sri K. Chidambaram, learned counsel for the petitioner, submitted that in the guise of revising the election schedule, the respondents have been trying to include the members who are not eligible to vote as on 31.12.2012 in the Voters' list.
as the election process was directed to be resumed from the stage where it was stopped, the eligibility of the members needs to be assessed with reference to the original election schedule. That means, whoever was eligible to vote as on the date of calling for objections with reference to the original date of election notified alone is entitled to claim inclusion in the voters' list subject to their eligibility.
In this view of the matter, respondent No.8 is directed to resume the election process as on 31.12.2012 strictly in accordance with the procedure prescribed under Rule-22(2) (b)(iii) and (v) of the Rules. He shall also strictly follow the procedure prescribed under sub- rule (vi) thereof with respect to finalisation of the Voters' list. The other respondents are restrained from interfering with the preparation and finalisation of the Voters' list.
In view of the above decision, the 1st respondent cannot issue the impugned G.O. at this juncture.
24. One more other ground is that operation of clause (iii) of second proviso to sub-section (1) of Section 21-A and Section 25 (1-A) (d) of the Act and Rules 18 (d) and 75 (2) of the Rules do not apply to a person for being chosen as a member of the committee of another society.
27. A combined reading of the above provisions show that the delegates of default Societies cannot be permitted to participate in the elections to DCCB, Ananthapur as these societies are not exempted from the application of relevant provisions, viz., Section Clause (b) of sub-section (1) of Section 21-A of the Act and Rule 24 (1b) of the Rules.
28. In view of my foregoing discussion, in the light of the law laid down by the Apex court as well as this Court in the precedents cited supra, the writ petition deserves to be allowed.
29. Accordingly, the writ petition is allowed as prayed for. There shall be no order as to costs. As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed.
_____________________ A. RAJASHEKER REDDY, J Date: 19-03-2014