Andhra HC (Pre-Telangana)
Gandham Venkata Swami Naidu And Others vs Deputy Registrar Of Co-Operative ... on 18 March, 2001
Equivalent citations: 2001(2)ALD578, 2001(3)ALT114
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. The writ appeal and the writ petition being inter-related were taken up for hearing together and are being disposed of by this common judgment.
2. Writ Appeal No.1530 of 2000 arises out of a judgment and Order dated 11-7-2000 passed by a learned single Judge in WP No.27153 of 1996 whereby and whereunder the writ petition was disposed of with the following directions:
"At this fag end of the term, I am not inclined to put them back in the office and the ends of justice will be served by directing the respondents to conduct elections as expeditiously as possible at any rate within 3 months without reference to any decision taken up by the Government for postponing the elections to the Co-operative Society under the pretext of weeding out the bogus members from the societies as the society is under the management of a special Officer for a considerable time and the will of the majority people in the governance of the affairs of the society is not reflected. During the course of hearing, it came to light that the 1st respondent in his proceedings in ROC No.127/96-B, dated 1-2-1996 passed an order of disqualification of the petitioner under Section 21-AA(1)(b) of the Act on the ground that he used fabricated documents and also fraudulently withdrew an amount of Rs.1,00,000/-(Rs.One Lakh only) from the society on 20-12-1994. Though an appeal in OS No.16 of 1996 seemed to have been filed by the petitioner before the Andhra Pradesh Co-operative Tribunal, Vijayawada, the Tribunal refused to suspend the said order. Hence, the order passed by the 1st respondent is in force as on today.
The ends of justice will be met by directing the Tribunal to dispose of the appeal as expeditiously as possible at any rate within three months from the date of receipt of a copy of this order as this appeal being a very old one.
It also come to the light of this Court that just one day prior to replacement of the petitioners as persons committee, i.e., on 16-11-1996, the 1st respondent passed an order on the basis of a statutory enquiry conducted under Sections 9 and 51 of the Act. Questioning the same, the 1st petitioner filed OA No.342 of 1996 in the same Co-operative Tribunal and obtained stay of the said order on 16-11-1996 which was made absolute on 24-11-1998. As the order of the surcharge stands suspended, the same shall not be treated as a disqualification for contesting the elections."
3. WP No.27153 of 1996 out of which the present appeal arises was filed by the President and five others of Rayakuduru Large Sized Co-operative Society; Rayakuduru village, Veeravasaram Mandal, West Godavari district questioning the action of the respondents in appointing an official as person-in-charge of the society.
4. The petitioner in WP No.22927 of 2000 who was a member of the society filed the writ petition inter alia on the ground that there existed an order of the Government directing not to hold elections being G.O. Ms. No.172, Agriculture and Co-operation, dated 24-7-2000 and the following relief was sought for:
"It is, therefore, necessary in the interests of justice that the Hon'ble Court is pleased to issue Writ of Mandamus or any other appropriate writ, order or direction declaring the action of the 2nd respondent in seeking to conducting the elections to the 3rd respondent as illegal, arbitrary, contrary to G.O. Ms. No. 172, Agriculture and Co-operation dated 7-11-2000 etc., and grant such other relief or reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case."
5. The directions issued by the Government in G.O. Ms. No.172, dated 24-7-2000 are in the following terms:
"The elections to the various agricultural credit and marketing Co-operative Societies were held in July, 1995. According to the provisions of the Andhra Pradesh Co-operative Societies Act, 1964, the tenure of the elected committee is for a period of 5 years and now elections are due to be held in the month of July to August, 2000.
2. Government have constituted a Cabinet Committee to examine and to suggest comprehensive reforms in the co-operative law with a view to reform the co-operative sector and functioning of co-operatives in the State. The Government desire that the Co-operative Section and Co-operatives should be come vibrant self-reliant institutions and organisations with greater membership participation and responsibilities, greater accountability of office bearers and the co-operative function, in an environment free from interference and control.
3. The Cabinet Sub-Committee apart from considering various reports of the experts is also undertaking extensive consultation process to elicit views, suggestions from experts and people associated with the Co-operative Sector.
4. The Government therefore of the view that election to the co-operatives be conducted after the reforms take place.
5. Further, during the Khariff season of 1999, due to adverse seasonal conditions the Agricultural Sector and particularly the farmers have suffered considerably and with a view to ameliorate their conditions, the Government with the help in NABARD has also take up the task of rescheduling loans and providing assistance to farmers. Conduct of elections in these circumstances will cause hindrance to this relief process.
In view of the above circumstances, the Government have decided not to conduct elections for the time being to the said societies. Therefore, the Government in exercise of the powers conferred under Section 32(7)(a) read with Section 131 of APCS Act, 1984, direct that the elections should not be held at present for all agricultural credit and marketing co-operative societies for which the Registrar of Co-operative Societies consider that it is not possible to call a general meeting for the purpose of conducting elections to the said societies so as to exercise the powers of Registrar under the Act.
The Government also direct that on the expiry of the terms of the existing elected Presidents and Managing Committee Members, Person-in-charge shall be appointed by the appointing authority for a period of six months or till the elections are conducted whichever is earlier except were such managing committees are deemed to be not fit and suitable for running the affairs of the society in the interest of the society. The Presidents and the Managing Committee Members may be appointed as Persons-in-charge and they will function as a Committee of Persons-in-charge of the societies and discharge all the functions of the Committee and to take all such activities as may be required in the interest of the society as specified in the provisions of the said Act and Rules and bye-laws made thereunder."
6. It is not in dispute that pursuant to the directions of this Court, election has already been held to the society. It is submitted at the Bar that in the said election several persons have been elected unanimously. It is also not in dispute that the validity or otherwise of the elected office bearers of the society can be questioned by raising an appropriate dispute before the Registrar in accordance with the provisions of the A.P. Co-operative Societies Act. It is, therefore, not for this Court to consider the legality or validity of such elections where the parties have a remedy available under law.
7. So far as the writ appeal is concerned, it is evident that the appellants-writ petitioners themselves has prayed for holding of elections to the society as would appear from paragraphs 10 and 11 of the affidavit filed in support of the writ petition. The only question which, therefore, arises for consideration is as to whether the aforementioned Government Order comes in the way of implementation of the order passed by the learned single Judge.
The said Government Order was issued as far back on 27-7-2000 having regard to the fact that elections were to be held in the month of July - August, 2000. It appears that the aforementioned G.O. Ms. had been issued having regard to the desire of the Government to bring about comprehensive reforms in the co-operative law so as to reach the desired goal of making the cooperative institutions more vibrant and self-reliant. The order also refers to the adverse seasonal conditions existed in the agricultural sector of the State during the Khariff season of 1999 as a result whereof it is stated that the farmers have suffered considerably. The order states that the Government have taken various measures to ameliorate the conditions of the farmers and that conduct of elections in such a state of affairs would cause hindrance to the relief process initiated and this is also stated to be one of the circumstances in not conducting elections to the societies. When the writ petition was heard, the attention of the learned single Judge was not drawn to the aforementioned order of the Government. The only question which, therefore, arises for consideration is whether such a notification could be issued prohibiting elections to the Co-operative Societies.
8. Section 32(7)(a) and Section 131 of the A.P. Co-operative Societies Act reads thus:
"7(a) If there is no committee or in the opinion of the Government or, the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the committee, the Government, in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a period not exceeding six months and the Government may, on their own and the Registrar with the previous approval of the Government, extend, from time to time, such period beyond six months, so however that the aggregate period include the extended period, if any, shall not exceed three years."
"131. Power of Government to give directions :--(1) The Government may generally or in any particular matter under this Act issue such orders and directions as they may consider necessary to the Registrar of Co-operative Societies and thereupon he shall give effect to such orders or directions and shall report to the Government in due course the result thereof.
(2) In any case, in which a direction has been given under sub-section (1), the Government may call for and examine the record of the proceedings of the Registrar and pass such orders in the case as they may think fit :
Provided that before passing any order under this sub-section, the person likely to be affected by such order shall be given an opportunity of making his representation."
Section 32 which falls in Chapter IV of the Act dealing with the management of societies refers to general meeting and committee meetings of the societies. A bare perusal of Section 32(7)(a) would show that the same is an enabling provision whereby the Government or the Registrar is of the opinion that it is not possible to call for a general meeting for the purpose of conducting election of members of the committee, then, the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases, may appoint a person or persons to manage the affairs of such societies for a period not exceeding six months. However, the Government, on their own, and the Registrar with the previous approval of the Government, may extend the period beyond six months subject to a maximum period of three years. It is, therefore, absolutely clear that by reason of the aforementioned provision, the Government or the Registrar must apply its mind to the materials available on record so as to arrive at a decision in relation to the Co-operative Societies in question that it is not possible to call for a general meeting for the purpose of conducting elections of members of the committee. The aforementioned Government Order also directs that it is for the Registrar to arrive at such a finding that it is not possible to call for a general meeting for the purpose of conducting elections to the societies. Section 131 also confers power on the Government to issue directions in relation to a particular case. General directions can be issued only with a view to give boost to the co-operative movement and not to stultify the same.
9. Constitution of Panchayats is no longer covered by statutory provisions. The democratic polity of gram panchayats now finds place in Part IX of the Constitution of India by reason of the Constitution (Seventy third Amendment) Act, 1992. Article 243-B mandates that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of Part IX. Clause (1) of Article 243-C also provides for the composition of Panchayats. Clause (2) of Article 243-C speaks of filling up of the seats in a Panchayat by direct election from territorial constituencies in the Panchayat area. By reason of the Constitution (Seventy third Amendment) Act, democracy, which is the basic feature of the Constitution, has now been extended to the gross root level. In this connection, it is also relevant to note that Article 40 of the Constitution also directs the State to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government. Self-governance, therefore, is the key area which is visualised by the constitution makers. Democracy in this country will be further strengthened by the active involvement and participation of the panchayats at all levels. The desired goal of making a Panchayat more vibrant and self-reliant will be best achieved if the constitutional provisions are given its full play. It is, therefore, not permissible to thwart that object and goal by the State by taking recourse to such provisions under the Act, which, in our opinion, does not contemplate a total prohibition of holding elections to the societies. A restrictive meaning, therefore, to the aforementioned G.O. Ms., in the considered opinion of this Court, is required to be given. It is now well known that all statutes have to be read having regard to the purpose and object thereto. If necessary, in order to uphold the constitutionality of the Government Order the same must be read down. The main purpose of issuing the aforementioned Government Order, as already been noticed hereinbefore, is to bring about comprehensive reforms in the Co-operative Law. Having regard thereto, we are of the opinion that it was never the intention of the State to postpone the election for a long time. But such directions issued in the Government Order must be confined only to those societies which would come directly within the purview of Section 32(7)(a) of the Act. Thus, by reason thereof, it cannot be said that the State has intended to impose a total ban on the elections to be held to all the societies throughout the entire State. The Government Order must, therefore, be held to be applicable to such of those societies in relation whereto the Registrar is of the opinion that it is not possible to call for a general meeting.
10. In the instant case it has been found that there was no such prohibition and the general meeting of the society has been held, as a result whereof, the order of this Court could be given effect to without any demur whatsoever by the Slate or the Registrar of the Co-operative societies. It is, therefore, not for the appellants or the writ petitioners herein to say that no election could be held despite the order of this Court. The order of the Court, unless it is held to have been passed wholly without jurisdiction, must be given effect to.
11. For the reasons aforementioned, the writ appeal and the writ petition are disposed of with a direction to give effect to the order of the learned single Judge subject to liberty being given to those persons who intend to challenge the election of the office bearers in terms of the provisions of the statute, if they are so advised. Having regard to the facts and circumstances of the case, there shall be no order as to costs.