Andhra HC (Pre-Telangana)
Darnam Laxminarayana, S/O Sayanna And ... vs The Deputy Registrar Of Co-Operative ... on 9 April, 2013
Equivalent citations: AIRONLINE 2013 AP 73, (2013) 4 ANDHLD 269
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.39323 of 2012 09.04.2013 Darnam Laxminarayana, S/o Sayanna and another. The Deputy Registrar of Co-Operative Societies, Sircilla, Karimnagar District and three others. Counsel for the Petitioners: Sri S.Satyam Reddy Senior Counsel for Ms K.V.Rajasree Counsel for Respondent No.1: GP for Co-Operation Counsel for Respondent No.2: Sri K.Lakshman Counsel for Respondent Nos.3 and 4: Sri P.V.Narayana Rao <Gist: >Head Note: ?CITATIONS: 1. 1999(2) ALD 298 (DB) 2. 2000(2) ALD 317 ORDER:
At the interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties.
The issues that arise in the Writ Petition are whether it is mandatory for respondent No.1 to have enclosed copies of No Confidence Motion moved against the petitioners along with the notice of meeting and whether non-enclosure of copy of No Confidence Motion has vitiated the initiation of proceedings for No Confidence Motion.
Petitioner Nos.1 and 2 are the President and the Vice-President of respondent No.2-bank, respectively. They have received a notice from respondent No.1 in Rc.No.833/12/C, dated 11.12.2012, under Section 34-A of the Andhra Pradesh Co- Operative Societies Act, 1964 (for short 'the Act') and Rule-24-A of the Andhra Pradesh Co-Operative Societies Rules, 1964. It is stated in the said notice that eight Executive Committee members of respondent No.2-bank have submitted No Confidence Motion notice, dated 07.12.2012, to respondent No.1 against the petitioners and therefore, an Executive Committee meeting was called for, on 27.12.2012 at 11 am, under Section 34-A (3) of the Act for discussion and voting in the office of respondent No.2. A direction was, therefore, issued to the Executive Committee members to attend the meeting on the appointed date at the designated place. This notice is questioned by the petitioners in this Writ Petition. The solitary ground on which the impugned notice is questioned is that the same has not been accompanied by a copy of No Confidence Motion, stated to have been moved by the eight Executive Committee members against the petitioners.
During the hearing, respondent Nos.3 and 4 were impleaded and all the respondents have filed separate counter-affidavits.
Sri S.Satyam Reddy, the learned senior counsel appearing for the petitioners, submitted that even though Section 34-A of the Act and Rule-24-A of the Rules do not in express terms provide for enclosure of copy of No Confidence Motion with the notice of meeting, as Section 34-A(7) of the Act provides for debate on No Confidence Motion, no effective debate can be made, unless the person against whom the No Confidence motion is moved is aware of its contents and the persons who moved it. He has sought to distinguish between the provisions of the Andhra Pradesh Panchayat Raj Act, 1994 and the Rules made thereunder and the Andhra Pradesh Co-Operative Societies Act, 1964 and the Rules made thereunder and submitted that in respect of the No Confidence Motions moved under the former Act and the Rules, the debate on No Confidence is forbidden, while under the latter Act and Rules, such debate is envisaged. He, therefore, submitted that the judgments rendered by this Court under the A.P. Panchayat Raj Act and the Rules framed thereunder have no application to the present case.
Opposing the above submissions, the learned Government Pleader for Co-Operation and Sri P.V.Narayana Rao, the learned counsel appearing for respondent Nos.3 and 4, have submitted that the extant provisions do not envisage service of copy of No Confidence Motion along with the notice to be issued by the Registrar and that, therefore, in the absence of any such statutory requirement, the requirement of service of copy of No Confidence Motion cannot be read into the provisions of the Act. They further submitted that the ratio of the judgment of the Division Bench of this Court in Y.R.Raghava Reddy Vs. Govt of A.P., Secy, Panchayat Raj Dept1 will apply to the cases arising under the A.P. Co-Operative Societies Act, 1964, as well and that, therefore, following the said ratio, the Writ Petition is liable to be dismissed.
I have carefully considered the submissions of the learned counsel for the parties and perused the record.
Section 34-A of the Act deals with the motion of No Confidence in the President and the Vice-President of the Committee. Sub-section (2) thereof provides that a written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one-half of the total number of members of the Committee together with a copy of the proposed motion shall be delivered in person, by any two of the members signing the notice, to the Registrar having jurisdiction over the Society. Upon receiving such Motion, under sub-section- (3), the Registrar shall then convene a meeting for the consideration of the motion at the office of the society on a date appointed by him which shall not be later than 30 days from the date on which notice under sub-section-(2) was delivered to him. Sub-section-(3) further provides "He shall give to the members notice of not less than 15 clear days of such meeting in such manner as may be prescribed". Sub-section-(7) thereof provides that after commencement of the Motion, the Registrar shall read to the Committee the Motion for the consideration of which the meeting has been convened and declare it to be open for debate.
Rule-24-A of the Rules laid down the procedure to be followed in respect of No Confidence Motions. Sub-rule-2 thereof envisaged the method of service of notice of No Confidence Motion. Sri S.Satyam Reddy has fairly conceded that neither the Act nor the Rules prescribe service of copy of No Confidence Motion along with the notice to be issued by the Registrar. As noted herein before, his submission, however, is that since a debate is envisaged by the Act, such a debate will be meaningless, if the person against whom No Confidence Motion is moved is not aware of its contents and the persons who moved it.
In Y.R.Raghava Reddy (1 supra), a No Confidence Motion was moved under the provisions of the A.P. Panchayat Raj Act, 1994. Similar to the procedure envisaged under the A.P. Co-Operative Societies Act, 1964, the extant provisions of the A.P. Panchayat Raj Act, 1994, also do not envisage enclosure of copy of No Confidence Motion along with the notice to be served by the competent authority on the members, Sarpanch and Upa-Sarpanch of the Gram Panchayat. However, Form-V notice, which shall be served by the competent authority on the members, contains a sentence reads "a copy of the proposed Motion of No Confidence is enclosed".
In the said case, there was a dispute before the Division Bench as to whether a copy of No Confidence Motion was enclosed with the notice in Form-V or not. The Division Bench held that the requirement of service of copy of No Confidence Motion was only directory and that even if Form-V was not complied with, such a defect does not invalidate either the notice or the No Confidence Motion proceedings. The Division Bench inter alia made the following observations: -
"We have perused the record. The notice was served though the copy of the proposed motion of No-Confidence is not attached with the said notice. Be that as it is, nothing has been pointed out at the Bar whereby, by the Legislature, it has been provided that non-compliance of processual or procedural provisions of service of notice or the form of notice would render the vote of no- confidence invalid. The object of procedural law is to serve the person or apprise the person that a vote of no-confidence would be held on a particular date and at a particular time for consideration of the motion of No-Confidence. It is only the intention of the proposer which has to be intimated to the members, which has been categorically made in the present case. It cannot be assumed that the petitioner was not aware of the object of the meeting, time of meeting and place of meeting. There is nothing on record from which we can assume that even the copy of the proposed motion was not enclosed. If it would have been so, the members would have approached the authority stating that the notice does not carry the copy which is stated to have been enclosed with the notice. Official acts are presumed to have been done in due discharge of the duty as envisaged and contained in the notice. There is a presumption that a copy of the motion has in fact been enclosed unless contrary is proved. There is nothing to prove contrary to the record. There is no dispute that eight members out of the twelve members had proposed to move a vote of No-Confidence. The meeting was already held and it is a fact accomplished that out of the twelve members, eight have voted in favour of the no-confidence motion. The notice being only directory, the mere use of the word "shall", cannot give rise to it being a mandatory in the facts and circumstances of the case, and specially when no consequence for non-compliance of the requirements of the notice in Form-V has been provided by legislation. In view of this, we find no force in the submission of the learned Counsel for the petitioner that the copy of the proposed motion of no-confidence has not been enclosed with Form-V notice."
In P.Bapu Raju Vs. Revenue Divisional Officer, Sangareddy2, a learned single Judge has taken a similar view and held that as, the provisions of Section 245(1) of the A.P. Panchayat Raj Act, 1994 and Rule-2 of the Rules framed thereunder do not prescribe service of copy of No Confidence Motion, mere statement in Form-V that a copy of the proposed motion of No Confidence is enclosed would not render service of copy of No Confidence Motion mandatory. However, it is interesting to note that the reason given by the learned Judge, for coming to this conclusion, is that as, the provisions of the A.P. Panchayat Raj Act, 1994, and the Rules made thereunder do not permit any debate, there was no need for enclosing a copy of No Confidence Motion along with the notice to be issued by the Registrar.
As rightly pointed out by Sri S.Satyam Reddy, there is a material distinction between the provisions of the A.P. Panchayat Raj Act, 1994 and the A.P. Co- Operative Societies Act, 1964 qua the procedure to be followed in the meeting convened for carrying out No Confidence Motion. In contrast to the provisions of the former Act, in the latter Act, specific debate of No Confidence Motion is prescribed. But, the question is whether this distinction would, by itself, make service of copy of No Confidence Motion mandatory.
It needs to be pointed out that even in the absence of a debate, Form-V prescribed under the Rules framed under the A.P. Panchayat Raj Act, 1994, provides for service of a copy of Motion of No Confidence. Interestingly, even though the provisions of the Act envisaged a debate, no such provision is incorporated therein. If the Legislature felt that for the purpose of debate, enclosure of a copy of No Confidence Motion is necessary, there would have been no reason why a specific provision is not incorporated therein. No ignorance can be attributed to the Legislature. Therefore, it is reasonable to presume that in its wisdom, the Legislature felt that service of copy of No Confidence Motion on the members is not required. The Courts cannot substitute its own opinion for the wisdom of the Legislature.
I am, therefore, of the opinion that in the absence of any provision in the Act or the Rules, either expressly or by necessary implication, mandating service of copy of No Confidence Motion along with the notice to be served by the Registrar to all the members, it is not possible for this Court to hold that service of copy of No Confidence Motion must be read into the provisions of the Act.
There is another angle from which this issue needs to be examined. There is a minimum time limit of 15 days between the service of notice and the date of No Confidence Motion. If the persons against whom the No Confidence Motion is moved or his supporters feel the necessity of knowing the contents of the Motion, they will have sufficient time to approach the Registrar with a request to furnish a copy of No Confidence Motion and other necessary details regarding the No Confidence Motion. If such a request is made, this Court feels that it is mandatory on the part of the Registrar to furnish a copy of No Confidence Motion and other details relevant for the purpose of Motion to such members. The Legislature has, obviously, assumed that as, such a facility is always available to the members, the requirement of service of copy of No Confidence Motion along with the notice is not necessary.
In the light of the above discussion, I am of the opinion that in the absence of statutory prescription of service of copy of No Confidence Motion to the members, the impugned notice issued by respondent No.1 does not suffer from any legal infirmity warranting interference of this Court. However, as observed herein before, the petitioners shall be free to approach respondent No.1 with a request to furnish copies of the No Confidence Motion. If the petitioners make such a request, respondent No.1 shall forthwith furnish the copies thereof. Since the proposed meeting could not take place in view of the interim order granted by this Court, respondent No.1 is directed to issue a fresh notice to the members by fixing a date for considering the No Confidence Motion.
Subject to the above directions, the Writ Petition is dismissed.
As a sequel to dismissal of the Writ Petition, interim order, dated 24.12.2013, passed in W.P.M.P.No.49937 of 2012 is vacated and the W.P.M.Ps, if any, pending, are dismissed as infructuous.
____________________________ JUSTICE C.V.NAGARJUNA REDDY 09th April, 2013