Narasimgapalem Fisherman ... vs The State Of Andhra Pradesh,
2021 Latest Caselaw 296 AP

              THE HON'BLE SRI JUSTICE A.V.SESHA SAI

      WRIT PETITION Nos.13833 OF 2020 AND 22973 OF 2020

COMMON ORDER:

      Since these two Writ Petitions are inter-related and as the

pleadings are completed, with the consent of the learned advocates

appearing for both sides, this Court deems it appropriate to dispose of

these two Writ Petitions by way of this common order, though the

matters are coming up under the caption 'For admission'.


      2.    In W.P. No.13833 of 2020, challenge is to the proceedings of

the Joint Director of Fisheries, Machilipatnam, Krishna District, dated

29.07.2020, appointing the Fisheries Development Officer, Vijayawada,

Krishna District, as Part-Time Person In-Charge of the subject society

and to declare the resolution of the General Body Meeting dated

23.07.2020, as illegal, irregular, arbitrary, unconstitutional and against

the principles of natural justice and to direct the respondents to

recognize the election of the subject society held on 14.03.2020 and to

return the records of the society.

3. In W.P. No.22973 of 2020, challenge is to the election

notification dated 06.11.2020 issued by the District Collector and

District Election Authority, Krishna District, under Rule 22 of the

Andhra Pradesh Co-Operative Societies Rules, 1964 (for short, 'the APCS

Rules, 1964'), notifying the election to the Managing Committee of the

subject society as 23.12.2020 by showing of hands as per the procedure

laid down under Rule 22B of the APCS Rules, 1964, and the petitioners

are also seeking a consequential direction to the respondents to

recognize the Executive Committee of the subject society elected on

14.03.2020.

4. According to the petitioners, the subject society is a society

registered under Section 7 of the Andhra Pradesh Co-Operative Societies

Act, 1964 (hereinafter called 'the APCS Act, 1964') and previously the

elections to the said society took place on 19.08.2015 for a period of five

years. According to the petitioners, the person elected as President of the

society, one Mr. Saali Veera Swamy, was removed from the post of

President, vide resolution dated 29.01.2017, and the same is disputed by

the impleaded respondents. It is also stated in the writ affidavits that

one Sri P.Yesupadam continued from 20.04.2018 till recently, i.e., till the

elections were conducted to the post of the President of the subject

society. It is the further case of the writ petitioners that on 15.01.2020

an Executive Committee Meeting was held and a resolution was passed,

authorizing the deponent of the writ affidavit to appoint an Election

Officer to hold fresh elections. It is also stated that on 26.01.2020, a

meeting was held, wherein a resolution was passed, appointing a retired

Registrar in Fisheries Department as the Election Officer to conduct

elections. According to the petitioners, on 14.03.2020, Election Officer

convened a General Body Meeting and conducted elections, wherein 148

members of the subject society attended the meeting and only 9

members filed nominations for the post of Executive Committee Members

and the present committee consisting of 9 members was elected

unanimously and the deponent of these affidavits was elected as the

President of the Society. On 13.06.2020, the Assistant Inspector of

Fisheries, Nuzvid, Krishna District, issued a notice, asking the society to

hold emergency General Body Meeting on 15.06.2020 at about 10-30

a.m. The petitioner-society gave a reply, informing about the fresh

election held on 14.03.2020 and requested the authority to hold the

General Body Meeting after the pandemic situation. Thereafter, on

18.06.2020, the Assistant Inspector, Fisheries Department, issued

another notice on the orders of the Assistant Director, asking to hold the

General Body Meeting on 26.06.2020, while referring to the complaint of

one Sri Sali Veera Swamy and others, in the Village Panchayat Office by

maintaining Covid-19 guidelines by wearing face mask and to maintain

social distance. On 24.06.2020, a reply was sent, expressing inability on

the ground of existence of Covid-19 and pointing out procedural aspects,

touching the bye-law No.25 of the Bye-laws of the Society and

subsequently, no General Body Meeting conducted as requested by the

authorities. On 02.07.2020, the Assistant Director, Vijayawada, issued a

notice, directing to hold General Body Meeting on 23.07.2020 for the

purpose of conducting enquiry on complaints and the same was received

by the petitioner on 10.07.2020. On 23.07.2020, the Assistant Director

of Fisheries, Vijayawada, visited the village and submitted a report on

24.07.2020. Thereafter, on 29.07.2020, the Joint Director of Fisheries,

Machilipatnam, appointed the Fisheries Development Officer,

Vijayawada, as Part-time Person In-charge for a period of six months or

till the elections to the Society are conducted, whichever is earlier under

Section 32(7)(a) of the Act, 1964.

5. Questioning the validity and legal sustainability of the said

order, appointing the Fisheries Development Officer as Part-time Person

In-charge of the subject Society, W.P. No.13833 of 2020 came to be filed

and on 14.08.2020, this Court granted interim order of suspension and

the same continued till the first week of October, 2020, and for one

reason or the other, the same was not extended thereafter. On

06.11.2020, the District Collector and District Election Authority,

Krishna District at Machilipatnam, issued an election notification,

proposing to conduct elections to the Managing Committee on

23.12.2020. The said notification issued by the District Collector,

Machilipatnam, Krishna District, is under challenge in W.P. No.22973 of

2020.

6. Heard Smt. M.Vidyavathi, learned counsel for the petitioners

in both the Writ Petitions and the learned Government Pleader for

Fisheries, Sri T.Kumara Babu, appearing for the official respondents and

Sri P.Veera Reddy, learned Senior Counsel, representing Ms. Sodum

Anvesha, learned counsel for the impleaded respondents.

7. It is submitted by Smt. M.Vidyavathi, learned counsel for the

petitioners that the subject society is an unaided society, as such, the

departmental authorities have absolutely no right in interfering with the

process of election of the subject society. It is further submitted that

Rule 22 of the APCS Rules, 1964, does not authorize the respondent-

authorities to initiate the process of election. It is also the submission of

the learned counsel that in view of the constitution of Managing

Committee in the election held on 14.03.2020, the appointment of the

Part-time Person In-charge and the subsequent election process

undertaken by the official respondents herein have absolutely no legal

sanctity. It is further submitted that according to sub-section (3) of

Section 61 of the APCS Act, 1964, the impleaded respondents have to

approach the Tribunal for reddressal of their grievance and it is not open

for the respondent-authorities to interfere with the election already held

on 14.03.2020. In support of her submissions and contentions, learned

counsel for the petitioners places reliance on a judgment of the

composite High Court in M.V.Ramanaiah and others v. A.P.

Secretariat Employees Mutually Aided Co-operative Housing Society

Ltd., Hyderabad, rep. by its President and others1.

8. On the other hand, it is submitted by Sri T.Kumara Babu,

learned Government Pleader for Fisheries that there is absolutely no

illegality nor there exists any procedural infirmity in the impugned action

and in the absence of the same, the impugned action is not amenable for

any judicial review under Article 226 of the Constitution of India. It is

further submitted by the learned Government Pleader, reiterating the

averments made in the counter affidavit, that since the petitioner-society

had been in receipt of subsidies from the Government, the subject society

fairly falls under Rule 22(1)(b) of the APCS Rules, 1964, as such, the

election process undertaken by the respondent-authorities cannot be

faulted. It is also the submission of the learned Government Pleader that

having regard to the facts and circumstances of the case, the provisions

of Section 61(3) of the APCS Act, 1964, have absolutely no application to

the case on hand.

9. Learned Senior Counsel Sri P.Veera Reddy, representing the

learned counsel on record for the impleaded respondents, submits that

106 members of the society, who were impleaded as respondents herein,

submitted a representation/complaint to the authorities and basing on

which, the present action has been be initiated. It is also the submission

of the learned Senior Counsel that no election was held on 14.03.2020.

2013(3) ALT 298

10. In order to adjudicate the issues in the present Writ

Petitions, it would be appropriate to refer to certain provisions of the

APCS Act, 1964 and the Rules framed thereunder. Section 31 of the

APCS Act, 1964, deals with the constitution of committees and according

to sub-section 1(a) of Section 31 of the APCS Act, 1964, the General Body

of the Society shall constitute a committee in accordance with the bye-

laws and entrust the management and the affairs of the society to such

committee. Chapter VI of the APCS Act, 1964, deals with the properties

and funds of the society and Section 43 of the APCS Act, 1964 deals with

the State aid to the Societies, which reads as under:

"43. State aid to Societies:- The Government may, subject to the rules,-

(a) give loans or advance moneys to a society;

(b) subscribe to the share capital of a society;

(c) provide moneys to a society

(i) for the purchase of shares of other societies; or

(ii) to enable it to provide moneys to another society to purchase shares in other societies;

(d) guarantee the repayment of principal and payment of interest on debentures issued by a society;

(e) guarantee the repayment of share capital of a society and dividends thereon at such rates as may be specified by the Government;

(f) guarantee the repayment of principal and payment of interest on loans and advance of moneys to a society;

(g) guarantee the repayment of deposits received by a society and payment of interest on such deposits subject to such terms and conditions as may be laid down by the Government; and

(h) give financial aid in any other form including subsidies to any society."

11. Rule 22(1) of the APCS Rules, 1964 reads thus:

"22. Conduct of Elections to the Co-operative Societies. - Notwithstanding anything in the bye-law of the societies election to the committee of all classes of societies, shall be in the manner laid down in this rule.] (1)(a) The incumbent Managing Committees shall themselves conduct and hold elections to societies which are not in receipt of State aid as specified under Section 43 of the Andhra Pradesh Cooperative Societies. Act, 1964 as per the procedures laid down in their bye-laws well before the expiry of the term of the existing Managing Committees. Such societies, if they so desire may request the Registrar of Cooperative Societies to conduct elections in which case the Registrar of Cooperative Societies shall conduct the elections as per bye-laws and for which purpose the society shall pay the fee as prescribed in [Rule 48] of the Andhra Pradesh Cooperative Societies Rules, 1964. The request to Registrar of Cooperative Societies shall be made at least sixty (60) days before the expiry of the term of the committee and the Registrar of Cooperative Societies shall hold elections before the expiry of the term of the Managing Committee.

(b) In the case of the societies that are in receipt of state aid as specified under Section 43 of the Act, the Registrar shall hold elections to them before the expiry of their term of the committee subject to the provisions in these rules schedule and regulations that the government may make from time to time."

12. A reading of the above provisions of law makes it abundantly

clear that when a particular society is not in receipt of financial aid from

the Government, as specified under Section 43 of the APCS Act, 1964, it

is incumbent on the part of the Managing Committee to hold elections to

the Society as per the procedure laid down in the Bye-laws of the Society

before expiry of the term of the Managing Committee. It is also open for

the said societies to request the Registrar of the Co-operative Societies to

conduct elections, and if any such request is made, the Registrar of the

Co-operative Societies shall conduct elections as per the Bye-laws,

subject to payment of fee as prescribed in Rule 48 of the APCS Rules,

1964. In respect of the societies in receipt of State aid, as specified

under Section 43 of the APCS Act, 1964, it is the duty of the Registrar to

hold elections before expiry of the term of such societies.

13. The essence of the case of the petitioners in the present Writ

Petitions is that since the subject society is not a society, receiving funds

of the Government, as per Section 43 of the APCS Act, 1964, the very

action of appointing a Part-time Person In-charge under Section 32(7)(a)

of the APCS Act, 1964 and the election process started by the official

respondents herein by issuing the election notification dated 06.11.2020

suffer from inherent lack of jurisdiction.

14. On the other hand, the case of the official respondents is

that since the subject society is an aided society under Section 43 of the

APCS Act, 1964 read with Rule 23 of the APCS Rules, 1964, the

impugned action cannot be faulted.

15. According to the impleaded respondents, no election was

held on 14.03.2020, as such, it is not open for the writ petitioners to find

fault with the impugned actions.

16. In order to show that the subject property is a society

receiving funds from the Government, along with the counter affidavit,

the respondent-authorities have filed certain documents. The said

documents are the proceedings of the Deputy Director of Fisheries,

Machilipatnam, Krishna District, bearing No.477/B/2012 dated

17.10.2012 and in the said proceedings, the individuals standing at

serial Nos.41 to 50 admittedly belong to the subject society. It is also

significant to note that one of the impleaded parties herein, who was the

former President, stands at serial No.41 and the deponent of the present

writ affidavits is at serial No.49. A letter bearing No.90/A/2012 dated

08.11.2013 addressed by the Assistant Director of Fisheries, Vijayawada,

to the Deputy Director of Fisheries, Krishna District at Machilipatnam,

also shows the subsidies extended to the subject society and the letter

dated 25.03.2014 of the Assistant Director of Fisheries, Vijayawada,

addressed to the Deputy Director of Fisheries, Krishna District at

Machilipatnam, also demonstrates the supplies made to the subject

society. These proceedings pertain to the period from 2012 to 2014.

17. In support of the submission made on behalf of the

petitioners that the subject society is an unaided society, audit reports

pertaining to the periods commencing from 2015 to 2019 are filed by the

petitioners but not for the period prior thereto. Having regard to the

documents filed by the authorities along with their counter, it cannot be

said that the subject society falls under clause (a) of Rule 22(1) of the

APCS Rules, 1964.

18. Once the society is in receipt of any one of the benefits under

Section 43 of the APCS Act, 1964, which includes financial aid and

subsidies also, it is not open for the petitioners to contend that since the

society is not an aided society and it is within the exclusive jurisdiction

of the authorities to conduct election. Admittedly, the term of the earlier

committee came to an end on 18.08.2020. Obviously, for the purpose of

conducting the election for the subsequent period, the present election

notification came to be issued by the respondent-authorities.

19. Since the very election of Managing Committee, if any held

on 14.03.2020, is without any sanctity of law and contrary to the

mandatory provisions of Rule 22 of the APCS Rules, 1964, the contention

that the aggrieved parties should file appeal against the election of the

Executive Committee dated 14.03.2020 is neither sustainable nor

tenable in the eye of law. It is very much clear from a reading of the

provisions of Rule 22 of the APCS Rules, 1964 read with Section 43 of

the APCS Act, 1964, that the election said to have been held on

14.03.2020 by the Managing Committee is a void election. Having regard

to the provisions of Rule 22 of the APCS Rules, 1964, the process of

election held on 14.03.2020 has absolutely no legal sanctity and on the

basis of such unauthorized process, the petitioners herein cannot

continue in the position.

20. The judgment sought to be relied upon by the learned

counsel for the petitioners in M.V.Ramanaiah's case (1 supra), in the

considered opinion of this Court, would not render any assistance to the

petitioners, having regard to the findings recorded supra and having

regard to the facts and circumstances of the case.

21. The provisions of Section 61(3) of the APCS Act, 1964 also

cannot be made applicable to drive the impleaded parties to go to the

Tribunal, as the very election of the Managing Committee dated

14.03.2020 is void, having regard to the provisions of Rule 22 of the

Rules, 1964. However, if the petitioners are aggrieved by any infirmity in

the proposed elections, it is open for them to question the same in

appropriate forum.

22. For the aforesaid reasons, both the Writ Petitions are

dismissed. Interim orders, if any granted in these Writ Petitions, stand

vacated. There shall be no order as to the costs of the Writ Petitions.

Miscellaneous Petitions pending, if any in these cases, shall stand

closed.

___________________ A.V.SESHA SAI, J Date: 22.12.2020 siva

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

WRIT PETITION Nos.13833 OF 2020 AND 22973 OF 2020

Date: 22.12.2020

siva