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2022 DIGILAW 451 (AP)

Vajarala Srinivasulu v. State of Andhra Pradesh

2022-04-26

M.GANGA RAO

body2022
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 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 Cooperative 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. 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. 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. 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. 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. 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. 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 others, 1999 (2) ALD 319 (DB), 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. 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 under Rule 22-C(iii) of the Rules but not otherwise. Hence, the impugned order does not disclose any such impairment of conduct of elections freely and fairly exercising the power to postpone the elections is illegal and arbitrary and when once the election has set in motion, the election could not be postponed. The Division Bench in the same judgment held that election process should commence from where it is left. 13. In view of the above discussion, the impugned Memo dated 04.08.2021 is liable to be set aside. Accordingly, the same is set aside and consequently the respondents are directed to complete the election process as per the notification dated 23.07.2021 with the same nominations and voters list, within a period of six (6) weeks from the date of receipt of a copy of this order. Accordingly, the Writ Petition No.29802 of 2021 is allowed. No order as to costs. 14. In view of the above discussion, the Writ Petition No.13396 of 2019 is dismissed giving liberty to the petitioners to avail the appeal remedy under the provisions of Section 76(3) of the Act before the appellate authority. No order as to costs. 15. Miscellaneous Petitions, if any, pending in these writ petitions shall stand closed.