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2020 DIGILAW 802 (AP)

Vema Prasad v. State of Andhra Pradesh

2020-12-11

M.GANGA RAO

body2020
ORDER : M. Ganga Rao, J. 1. This writ petition, under Article 226 of the Constitution of India, is filed seeking the following relief's :- "..to issue a Writ of Mandamus declaring (a) the action of person in charge committee of the 5th respondent cum Fisheries Development Officer, Ongole, admitting respondents 7 to 42 as contrary to provisions of G.O.Ms. No. 74 of Animal Husbandry, Dairy Development & Fisheries (F.II) Department dated 21.10.2011 and clause 4(a) and 4(b) of bye laws of the 5th respondent society and the provision of APCS Act, 1964 and rules framed thereunder; (b) declaring the action of the respondents in not including the 2nd petitioner, who was one of the Director of the earlier committee in voters list as illegal, arbitrary and violative of the principles of natural justice, provisions of the APCS Act 1964, Rules and Bye-laws of the Society; (c) direct 6th respondent to rectify the voter list by removing respondents 7 to 42 and including petitioner No. 2 and then only conduct elections to the 5th respondent society and (d) pass such other order or orders.." 2. Heard learned counsel for the petitioners and learned Government Pleader for Co-operation. Since this Court is inclined to hear and pass appropriate order in the writ petition at the stage of admission, no notice is ordered to the respondents 7 to 42. 3. The case of the petitioners is that the 1st petitioner is the member of the 5th respondent - Sri Venkata Ramana Harijan Fishermen's Co-operative Society. The 2nd petitioner was the Director of the superseded elected management committee of the 5th respondent society. He is interested in contesting in the ensuing elections. The 5th respondent society is formed in the year 1984 and duly registered under A.P. Cooperative Societies Act, 1964 [for short, 'the Act']. Elections of the managing committee of the society was conducted on 14.03.2017 and the office bearers were duly elected on 14.03.2017 for a period of five years. The term of the committee expires on 13.03.2022. After the general elections in the State and change in the Government, the Fisheries Development Officer, Ongole, on 02.08.2019 requested the managing committee of the society to handover the books of the society. The term of the committee expires on 13.03.2022. After the general elections in the State and change in the Government, the Fisheries Development Officer, Ongole, on 02.08.2019 requested the managing committee of the society to handover the books of the society. Subsequent to handing over of the books, on 21.09.2019, the 4th respondent, with a predisposed mind of superseding the managing committee of the Society, has issued a show cause notice, for which the members of the managing committee issued a reply on 02.10.2019 stating that the books of the Society have been handed over to the Fisheries Development Officer and will only be able to give reply upon providing the same to them. Despite the said reply, the 3rd respondent, on 09.10.2019, illegally and without following the procedure envisaged under the provisions of the Act, superseded the elected committee under Section 34 of the Act and appointed Fisheries Development Officer [FDO], Ongole, as person-in-charge [PIC]. Thereafter, the person-in-charge, at the instance of political busy bodies in the village who belong to party in power in the State, illegally and contrary to the provisions of the Act, Rules made under the Act, G.O.Ms. No. 74 dated 21.10.2011 and clause 4(a) and 4(b) of the amended bye-laws of the 5th respondent Society, admitted respondents 7 to 42, despite non availability of water sources as per the viability norms @ 1Ha WSA per one person under the Society for fishing. The petitioners for the first time came to know about the inclusion of respondents 7 to 42 as members of the society only when the 6th respondent, who is appointed as the Election Officer, referring to the proceedings No. Elections 474/E/2020 dated 02.11.2020 of the 3rd respondent, has published an undated voter list stating that election will be held on 18.12.2020. Except the voters list and intimating the date of election, no other election schedule is published so far. Even the proceedings, dated 02.11.2020, were not made available to the petitioners. Immediately, the petitioners together, the 2nd petitioner separately and about 15 members of the society gave their objections to the respondents in relation to the illegal inclusion of the voters, on 04.12.2020, 04.12.2020 and 02.12.2020 respectively, and for deletion of the names in the voters list from Serial No. 31 to 70 and to stay the election scheduled to be held on 18.12.2020. In the list of voters of society consisting 63 voters, the name of the 2nd petitioner, who was the Director of the earlier managing committee, is not included and 36 new voters, who were admitted as members contrary to the provisions of the Act, Rules made thereunder, G.O.Ms. No.74 and clause 4(a) and 4(b) of the amended byelaws, were included. The above conduct of the 6th respondent is illegal, arbitrary and discriminatory. Hence, questioning the same, the present writ petition came to be filed. 4. Learned counsel for the petitioners submits that G.O.Ms. No. 74 postulates for holding of skill test to every person seeking admission into membership of a fishermen co-operative society. It is mandatory for every applicant seeking admission into a fishermen co-operative society to appear before the Three Men Committee constituted by the Government for identification of the bona fide members/fishermen. On 04.09.2017 the then Managing Committee of the Society has recommended to admit 26 persons in place of their deceased family members. However, they were not admitted as no skill test was conducted by the authorities as required under G.O.Ms. No. 74. Till the supersession of the managing committee, on 09.10.2019, no skill test was conducted. The members of the society and their families eke out their livelihoods on fishing. The legal heirs of the deceased members of the society must be given preference for admission into the society. One acre of water spread area is required for one member in case of perennial/canal fed water sources and two acres of water spread area is required for one member in case of all other water sources (rain fed), As per term (D) of G.O.Ms. No. 74, dated 21.10.2011, whenever any skill test is to be conducted, advance intimation of the date, time and venue of the skill test has to be given not only to the applicants but also to the others concerned by beat of torn, and by notifying in the Gram Panchayat and other public places in the village including hamlets, if any. The said procedure is admittedly not followed in this case before admitting the respondents 7 to 42 by the PIC of the 5th respondent society. In the selection process, priority is to be given to poorest of poor among the applicants. The said procedure is admittedly not followed in this case before admitting the respondents 7 to 42 by the PIC of the 5th respondent society. In the selection process, priority is to be given to poorest of poor among the applicants. As per norms if the number of eligible applicants is more than the norms prescribed, the age criteria should be followed eliminating people of higher age group to start with. Therefore, it is just and fair to conduct the skill test for all eligible aspiring applicants by following the term (D) of G.O.Ms. No. 74 and other relevant terms. Hence, the admission of respondents 7 to 42 in the society is not only violative of the terms of the G.O.Ms. No. 74 but also detrimental to the interests of the legal heirs of the deceased members of the society and would result in violations of their rights of survival. Further, after coming into force of the G.O.Ms. No. 74, the society has amended bye-law 4(a) and 4(b) in accordance with the model bye-laws and the same was registered as Rc. No. 175/E/2011 dated 15.12.2011 by the 4th respondent. As per amended bye-laws persons from the communities listed in the G.O.Ms. No. 98 dated 22.01.1964 who possess the skills (as per the 5 tests prescribed in G.O.Ms. No. 74 dated 21.10.2011), and certified by the 3 Men Committee and residing in the area of operation of the society and not ineligible as per 4(b) of model bye laws and Sections 19 & 21 of the Act are eligible to become members of a Fishermen Co-operative Society subject to the available of water sources as per the viability norms @ 1Ha WSA per one person. As per the aforesaid law in force as on date, only upto a maximum of 35 members can be there in the society. As on December, 2019 there were 28 members. As such only 7 vacancies are there in the Society. 26 members recommended by the managing committee of the society on 04.09.2017 ought to have been invited to take the skill test and eligible 7 members out of them could be admitted as members in the society. However, the PIC of the 5th respondent society, without following the procedure as required under clause D, E & F of G.O.Ms. 26 members recommended by the managing committee of the society on 04.09.2017 ought to have been invited to take the skill test and eligible 7 members out of them could be admitted as members in the society. However, the PIC of the 5th respondent society, without following the procedure as required under clause D, E & F of G.O.Ms. No. 74 dated 21.10.2011, admitted respondents 7 to 42 despite non-availability of water sources as per the viability norms @ 1Ha WSA per one person under the Society for fishing. Further, the name of the 2nd petitioner, who was one of the Director of the earlier managing committee is not included in the voters list. The non-inclusion of the name of the 2nd petitioner in the voters list, despite he being one of the Director of the earlier committee is illegal. Therefore, the petitioners are entitled to a direction to the respondents to include the name of the 2nd petitioner in the voters list to enable him to contest in the elections scheduled to be held on 18.12.2020. 5. The learned Government Pleader for Co-operation submitted that the election process is set in motion by issuing notification and any dispute pertaining to the election process can only be raised before the Election Tribunal having jurisdiction under Section 61(3) of the Act. Therefore, the writ petition is misconceived and is liable to be dismissed. In support of his contentions, he placed reliance on the decisions of the erstwhile High Court of AP in Ch. Srinivasa Rao and another v. District Collector/Election [ 2007 (3) ALT 23 : 2007 (3) ALD 197 ] and Soma Venkata Rao v. Velamuri China Ayyappa Reddy [ 2013 (5) ALT 163 : 2013 (4) ALD 526 ]. 6. The petitioners' main grievance appears to be non-inclusion of the 2nd petitioner and wrong inclusion of the respondents 7 to 42, in the voters list, as members of the 5th respondent society, for which the petitioners are having effective statutory remedy before the competent authority under the Act, as the members are admitted by the person in charge of the 5th respondent society. The validity or otherwise of the admission of the respondents 7 to 42 as members cannot be adjudicated by this Court, under Article 226 of the Constitution of India, as disputed questions of fact do arise for consideration, which requires conduct of enquiry and this Court will not ordinarily embark on enquiry to decide the lis. 7. In the case of Ch. Srinivasa Rao, 2007 (3) ALT 23 (supra), it was held as follows : Rule 22 of the Andhra Pradesh Co-operative Societies Rules 1964 (for short 'the Rules') envisaged the whole process of conducting elections to all classes of cooperative societies in the State. The procedure envisaged therein includes various steps such as appointment of Election Officer, publication of list of members eligible to vote, inviting claims or objections from the members to the draft voters list, communication of the final voters list to the Election Officer by the Chief Executive Officer or President of the Society, issuance of election notice by the Election Officer, fixing the election programme, holding of elections and declaration of result etc. Rule 22 of the Rules is therefore a complete code in itself. It is held in a large number of decisions that every step envisaged in Rule 22 of the Rules forms part of the election process and any dispute relating to any of these steps constitutes a dispute relating to or in connection with an election within the meaning of Section 61(3) of the Act. In Shri Sant Sadguru Janardhan Swamy (Moingiri Maharaj) Sahakari Dugdha Utpadak Samithi v. State of Maharashtra, the Supreme Court, while dealing with the Maharashtra Co-operative Societies Act, 1960 and the Rules made thereunder, held that preparation of voters' list is an intermediate stage in the process of the election of a specified society and that the election process having been already set in motion the appropriate remedy for the aggrieved party is to move the Election Tribunal by raising an election dispute. In M.A.R.V.S. Sai Baba and others v. Commissioner and Registrar of Co-op. In M.A.R.V.S. Sai Baba and others v. Commissioner and Registrar of Co-op. Societies, Government of A.P., Hyderabad and others, a Division Bench of this Court held that the issue relating to the validity of the membership of the society including that of wrong admission of a member or non-inclusion of a valid member on the rolls of the Society is an issue to be decided before the election process begins and that once a decision is taken to hold the election and the election process commences by issuance of notification, any dispute in connection with the election, whether it relates to nominations or improper preparation of the electoral rolls or any other aspect pertaining to the elections have to be settled only in an election dispute raised under Section 61(3) of the Act. As the election process having already begun in this case and in view of the aforementioned authoritative pronouncements, the present writ petition filed questioning the election notification cannot be entertained. If the petitioners are aggrieved by the omission of their names from the voters list, they have to take recourse to the remedy provided under Section 61(3) of the Act by raising an election dispute, after the completion of the election process and within the period of limitation stipulated under the statute. 8. In view of the above decision and considering the earlier order of this Court, this Court found that the writ petition is misconceived and the relief sought for by the, petitioners could not be granted. The writ petition is devoid of any merits and is liable to be dismissed. 9. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. 10. Pending interlocutory applications, if any, shall stand closed.