Andhra Pradesh High Court - Amravati

Kalichappidi.China Ankaiah vs The State Of Andhra Pradesh on 26 April, 2022

        THE HON'BLE SRI JUSTICE M.GANGA RAO

        Writ Petition Nos. 29802 of 2021 & 13396 of 2019


COMMON ORDER:


     Both the writ petitions are taken up for hearing and

disposed of by this common order since basing on the letter of

the Person In-charge of the Fishermen Co-operative Society,

Kaluvoy dated 02.08.2021 whereby he submitted a report to

the District Election authority, SPSR Nellore District stating

that 228 members of the society who were removed from the

society filed W.P.No.13396 of 2019 and till the outcome of the

said writ petition is awaited, it was decided to stall the

elections to the society as per the election notification dated

23.07.2021 and also to conduct secret ballot voting, thereby

requesting to postpone the elections till the outcome of

W.P.No.13396      of    2019,    the     Joint    Director   of

Fisheries/Additional District Election Authority passed the

Memo dated 04.08.2021 postponing the elections to the

society until further orders in accordance with the provisions

of Rule 22-C(iii) of the Andhra Pradesh Co-operative Societies

Act, 1964 (for short 'the Act'), which is questioned in

W.P.No.29802 of 2021.


2.   The petitioner in W.P.No.29802 of 2021, who is the Ex-

President of the Fishermen Co-operative Society, Kaluvoy,

SPSR Nellore District, filed the writ petition being aggrieved

by the impugned Memo dated 04.08.2021 of the                 4th
                                   2



respondent in postponing the elections of the 6th respondent

society executive body, seeking a direction to the respondents

to proceed with the election process in pursuance of the

election notification dated 23.07.2021 issued by the 2nd

respondent.

3. Sri K.Rathangapani Reddy, learned counsel appearing

for the petitioner in W.P.No.29802 of 2021, would contend

that the 6th respondent society is a registered Fishermen

Co-operative Society registered in the year 1955 and ever

since the society has been functioning through the elected

Managing Committee as per the bye-laws of the society.

When the term of the existing Managing Committees of the

society is going to expire, then the District Election Authority,

Nellore by proceedings dated 23.07.2021 exercising the

powers vested under Section 31(2) of the Act read with Rule

22 of the Andhra Pradesh Co-operative Societies Rules, 1964

(for short 'the Rules') made thereunder issued election

notification, duly fixing election schedules to conduct

elections to the Managing Committee of the Fishermen Co-

operative Societies as per the election schedule and also

appointed the Election Officers detailed therein. Out of three-

phase election schedule, the election of the 6th respondent

society is scheduled to be in Phase-I duly fixing the date of

poll on 27.07.2021 appointing Sri S.Sreenivasulu, Assistant

Director of Fisheries, Kavali as Election Officer. The Election

Officer has to conduct elections to the Managing Committee of

the Society in accordance with Rule 22(B) of the Rules. After

completion of the election process, the Election Officer will

submit the election comprehensive report along with elected

Managing Committee to the Joint Director of Fisheries, SPSR

Nellore District, Nellore. The said election programme is

postponed through the impugned proceedings dated

04.08.2021 issued by the 4th respondent until further orders

in accordance with the provisions under Rule 22-C(iii) of the

Rules based on the report dated 02.08.2021 of the 6th

respondent and letter dated 04.08.2021 of the 5th respondent

referring to the orders of the 2nd respondent-District Election

Authority, Nellore. The impugned order refers to the report of

the Person In-charge of the society, wherein it is stated that

228 members out of 350 members were removed from the

society, the elections of the society may be deferred until

further orders of this Court in W.P.No.13396 of 2019 and if

the elections are conducted by raising the hands, there will be

every likelihood of law and order problem and the members

have no chance of participating in the elections freely and

fairly and the secret ballot may be introduced.

4. Out of 228 members who were removed as the members

of the society, 146 members filed W.P.No.13396 of 2019

challenging the notice dated 31.08.2019 passed by the

President of the 5th respondent society removing the

petitioners from the primary membership of the society as

being illegal, contrary to the provisions of the Act and also

G.O.Ms.No.74, Animal Husbandry, Dairy Development &

Fisheries (F.II) Department, dated 21.10.2021 and Articles 14,

19 and 21 of the Constitution of India apart from violation of

principles of natural justice.

5. A perusal of the impugned notice dated 31.08.2019

reveals that as per the proceedings dated 08.03.2019 of the

Assistant Director/Ex-officio Deputy Registrar, Gudur,

Resolution No.6 of the General Body of the 5th respondent

society and order of this Court dated 09.08.2019 passed in

W.P.No.11063 of 2019, by the impugned notice, the share

capital of Rs.50/- each was returned to the 198 members of

the society who were removed, through postal money order

and from that date the members are ceased to have relation

with the society.

6. Mrs. M.Vidyavathi, learned counsel appearing for the

petitioners in W.P.No.13396 of 2019, states that the

petitioners are the old members of the society and they all are

living as fishermen by occupation. They are solely depending

on fishing activity for their livelihood. The society was

registered in the year 1955 under the provisions of the

Societies Registration Act prevailing at that time. The area of

the society is consisting of five villages viz., Kaluvai,

Baddavolu, Ramannagaripalli, Seetarampalli and

Brahmanapalli and 302 persons are the members of the

society. The 1st respondent-Government issued G.O.Ms.No.74

dated 21.10.2011 framing comprehensive guidelines of

conduct of skill test, admission of members, elimination of

bogus/ineligible members in accordance with the provisions

of the Act and the Rules made thereunder. As per the said

guidelines, the persons, who are in possession of required

fishing skills and their main occupation is fishing activity for

livelihood, are eligible to be the members of the society. The

Government has constituted Three-Men Committee to

conduct skill test and those who are passed in the skill test

alone are eligible to be admitted as members of the society.

The petitioners are the existing old members as per the

clarification issued by the Commissioner of Fisheries in Memo

No.3739/12/2012 dated 03.05.2012 stating that

G.O.Ms.No.74 dated 21.10.2011 is only a prospective but not

retrospective. All the petitioners are old members who are

admitted prior to 2010 and some of the petitioners are

admitted in the year 2012 after conducting the skill test. At

the end of the year 2012-13, there are 329 members in the

society including admission of 82 new members and removal

of 58 members as per the audit report for the year 2012-13.

The Assistant Director of Fisheries has addressed a letter to

the Joint Director of Fisheries on 07.03.2019 stating that the

total number of members of the society as on the date i.e.,

07.03.2019 are 302 and out of which 198 members failed to

attend the skill test and 74 members out of 104 who attended

the skill test are found eligible and remaining 30 are not

eligible. Further, skill test was also conducted to 23 members

for fresh admission and out of which 22 members are found

to be eligible and they were admitted. The 198 members

including the petitioners were not attended the skill test

conducted from 13.02.2019 to 15.02.2019, whereas the

petitioner Nos.5, 8, 13, 16, 24, 35, 37, 56, 65, 67, 71, 72, 99,

101, 104, 134, 136, 141, 143, 145 and 146 were admitted in

the year 2012 as members of the society after passing the

skill test. However, they had attended the re-skill test

conducted from 13.02.2019 to 15.02.2019 and they were

shown as not qualified. The 4th respondent - Assistant

Director of Fisheries issued order dated 08.03.2019 referring

to the letter of the 3rd respondent dated 07.03.2019, directing

the President of the Society to remove the membership of 198

members who have not attended the skill test, which is

illegal. In the letter of the Assistant Director of Fisheries/Ex-

Officio Deputy Registrar, Gudur dated 08.03.2019, it is

specifically mentioned that out of 104 members who were

attended to the skill test, 74 members were declared as

qualified and also out of 26 persons sought for new

membership, 22 persons were declared as qualified by the

Committee. It is also directed to cancel the membership of 30

persons who are not qualified in the skill test and 198

members who have failed to attend the skill test, as per the

bye-laws of the society. The 6th respondent society, after

issuing direction by this Court in Writ Petition No.11063 of

2019 dated 09.08.2019, passed the impugned Notice dated

31.08.2019. She vehemently submits that this Court by

order dated 09.08.2019 never directed the 5th respondent

society to remove the petitioners from the primary

membership of the society but only stated to consider the

representation. However, without issuing any opportunity of

hearing as directed by this Court, the impugned order is

passed, which is illegal and arbitrary.

7. The learned Government Pleader for Fisheries, while

reiterating the counter filed by the 5th respondent in

W.P.No.29802 of 2021 and the counter filed by the 4th

respondent in W.P.No.13396 of 2019, states that the society

has resolved to conduct re-skill test to all the existing

members in the society for removal of unskilled members by

continuing the genuine fishermen in the society. The 2nd

respondent - Commissioner of Fisheries has instructed the

3rd respondent - Joint Director of Fisheries by proceedings

dated 15.05.2018 to take action for deletion of ineligible

members and conduct of re-skill test to the members of the

society by appointing the Assistant Director of Fisheries,

Ongole, Prakasam District as Observer in accordance with the

guidelines issued in G.O.Ms.No.74 dated 21.10.2011.

Accordingly, the 4th respondent - Assistant Director/Ex-

Officio Deputy Registrar, Gudur issued notice dated

30.01.2019 to the President of the society duly fixing the

dates to conduct skill test on 13.02.2019, 14.02.2019 &

15.02.2019 at PWD tank, Kaluvoy to the 302 members with

village-wise vide Notice dated 30.01.2019 under copy to

Special Officers of Gram Panchayat, Kaluvoy, Baddivolu,

Brahmanapalli and Sitaramapalli Villages in the area of

operation of society by wide publicity through tom-tom and

also published in the daily newspaper dated 14.02.2019. In

accordance with the skill test scheduled on 13 to 15th of

February, 2019, the 104 existing members and 23 new

applicants were attended before skill test committee and

faced the skill test. Out of 104 existing members of the

society, 76 members were passed and out of 23 new

applicants, 22 members were passed. Out of 302 existing

members, 198 members were not attended for the skill test

conducted from 13th to 15th February, 2019 in spite of wide

publicity made by the 4th respondent - Assistant Director/Ex-

Officio Deputy Registrar, Gudur as well as the Society. The

3rd respondent has issued proceedings dated 07.03.2019 to

issue orders for deletion of 30 unskilled/ineligible members

and 198 members who were not attended to the skill test

before the skill test committee as per the schedule. In

pursuance of the instructions issued by the 3rd respondent,

the 4th respondent passed orders vide proceedings dated

08.03.2019 allowed the 5th respondent society with

authorization to admit 74 eligible existing members and 22

new members and also to remove the 30 unskilled/ineligible

members and 198 members who were not attended to the

skill test before the skill test committee and directed to

conduct general body meeting and take further action in

accordance with the rules and regulations of Bye-law of the

society. Accordingly, the 5th respondent society conducted

General Body meeting on 27.03.2019 and the General Body

was unanimously accepted the proceedings of the 4th

respondent on skill test and resolved for removal of ineligible

members. In the meanwhile, five persons filed W.P.No.11063

of 2019 seeking a direction to the respondents 3 and 4 to take

action on the representation dated 17.07.2019. The said writ

petition was disposed of on 09.08.2019 giving liberty to the

petitioners therein to submit a fresh representation to the

society within a period of two weeks from the date of that

order and the 7th respondent-society therein shall consider

the same after hearing the petitioners therein and all other

concerned and pass an appropriate order strictly in

accordance with law within a period of three weeks from the

date of receipt of a copy of that order. Accordingly, the

impugned order came to be passed. For removal of the

petitioners from the membership of the society for non-

passing the skill test and making them ineligible to continue

in the society, to decide the issue against which the appeal

remedy is available under the provisions of Section 76(3) of

the Act, the writ petition is not maintainable as the disputed

questions of fact do arise for consideration.

8. Sri B.Rama Krishna, learned counsel appearing for the

5th respondent in W.P.No.13396 of 2019, states that the

petitioners were removed from the members as they failed to

appear for the skill test conducted as per the procedure, for

which the society is the competent authority under the

provisions of Section 30 of the Act. By following the

procedure and after conducting skill test as per G.O.Ms.No.74

dated 21.10.2011, the petitioners were removed from the

primary membership of the society and the same could not

said to be illegal and thereby the writ petition is not

maintainable and they have to avail the alternative remedy of

appeal under Section 76(3) of the Act.

9. Sri K.Rathanga Pani Reddy, learned counsel for the

impleaded respondents 6 and 7 vide I.A.No.1 of 2021 in

W.P.No.13396 of 2019, also submits that the petitioners were

removed from the membership of the society by following the

procedure and if they are aggrieved, they have to approach

the alternative remedy under Section 76(3) of the Act but not

by way of writ petition. The pendency of the Writ Petition

No.13396 of 2019 has no bearing and based on the report

submitted by the 4th respondent on 04.08.2021, the elections

of the society were postponed indefinitely, which is illegal and

arbitrary. When once elections are notified, the respondent

authorities could not postpone the elections except only

following the procedure contemplated under Rule 22-C(iii) of

the Rules. The said Rule clearly envisages that where there is

a reasonable apprehension that voters will not be allowed to

vote freely and fairly, then only the elections can be

postponed by the Government or the Election Authority. But,

in this case, no such report is made available to the 4th

respondent to pass the impugned memo dated 04.08.2021 to

postpone the elections scheduled to be held as per the

notification. The respondent authorities by yielding to the

pressure of the local M.L.A., postponed the elections by

mocking the democratic process.

10. Mrs. M.Vidyavathi, learned counsel appearing for the

impleaded respondents 7 to 15 in I.A.No.1 of 2022 in

W.P.No.29802 of 2021, states that the Person In-charge of the

society submitted a report to the 4th respondent that free and

fair elections could not be conducted by raising hands and

sought for permission to conduct secret ballot. When

interference of the persons who are removed from the

membership of the society and they filed Writ Petition

No.13396 of 2019, pending further orders in the writ petition,

the elections were postponed and there is no illegality in

postponing the elections and even the Election authorities

have not issued any election notification and the proceedings

dated 23.07.2021 is only provisional notification.

11. Having regard to the facts and circumstances of the

case, submissions of the learned counsel and on perusal of

the record, this Court found that the society has published

preliminary voters list on 27.07.2021 and widely published

and called for objections by 01.08.2021. However, some

persons submitted objections and out of 350 members, 228

members were removed from the voters list. The Division

Bench of erstwhile High Court of Andhra Pradesh in the case

of M.A.R.V.S.Sai Babu Vs. Commissioner and Registrar of

Co.op. Societies, Govt. of A.P., Hyderabad and others1, held in

Para No.7 thus:

"... It is pertinent to mention that the issue relating to the validity of membership of a society including that of wrong admission of a member in the rolls of the society is an issue to be decided before the election process begins and that can be a valid ground to invoke Section 32(7)(a) of the Act to set right the things and then proceed for the elections and appoint a person-in-charge to manage the affairs of the society in the interregnum. But, once a decision is taken to hold the elections and the election process commences by issue of notification, Section 32(7)(a) of the Act has got no role and any dispute in connection with the election, be it of the nomination, of improper electoral roll and other aspects, have to be settled only by way of a judicial adjudication contemplated in Section 61(3) of the Act..."

It is also held that Section 61(3) of the Act is subject to

Section 61(4) of the Act, which mandates that such a dispute

relating to or in connection with any election can be

entertained only after declaration of the result.

1999(2) ALD 319 (DB)

12. Therefore, the irregularities in the final electoral rolls is

not an issue to conduct of elections when once the elections

process begins. Likewise, mere pendency of Writ Petition

No.13396 of 2019 filed by the removed members as their

names are not find place in the voters list, could not be a

ground to postpone the elections. Even the Election

Authority has to postpone the election exercising the power