*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY W.P.Nos.17593 & 18023 of 2008 % 05.09.2008 WRIT PETITION NO : 17593 of 2008 Between: G.Mallaiah. ..... PETITIONER AND 1 G.Chittaiah and others. .....RESPONDENTS ! COUNSEL FOR THE PETITIOENR: Sri Venkatram Reddy ^ COUNSEL FOR THE RESPONDENT No.1: G.Arun Kumar ^ COUNSEL FOR THE RESPONDENT No.5: G.P.for Co- operation W.P.No. 18023 of 2008 Between: A.Narsimha. ..... PETITIONER AND 1 G.Chittaiah and others. .....RESPONDENTS ! COUNSEL FOR THE PETITIOENR: Sri Pankaj Reddy ^ COUNSEL FOR THE RESPONDENT No.1: G.Arun Kumar ^ COUNSEL FOR THE RESPONDENT No.5: G.P.for Co- operation Gist: > Head Note: ? CITATIONS: THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 17593 & 18023 of 2008 Dated : 05.09.2008 Between G.Mallaiah and another. PETITIONERS And Garidasu Chittaiah and others. RESPONDENTS THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 17593 & 18023 of 2008 COMMON ORDER: These two writ petitions are ﬁled, challenging the order, dated 22.07.2008, passed by the A.P. Co-operative Tribunal at Warangal in O.P.No.6 of 2008. The respondents are common in both the writ petitions. For the sake of convenience, the petitioner in W.P.No.17593 of 2008 is referred to as ‘the 1st petitioner’ and the one in W.P.No.18023 of 2008 is referred to as ‘the 2nd petitioner’. The elections to the Managing Committee of Bhongir Handloom Weavers Co-operative Society Limited were held on 12.02.2008. Petitioners herein, respondents 3 and 4 and certain others were elected as Directors and the 1st petitioner was chosen as President among them. The 1st respondent ﬁled O.P.No.6 of 2008 under sub-Section (3) of Section 61 of the A.P. Co- operative Societies Act, 1964 (for short ‘the Act’) with a prayer to set aside the election of the petitioners and respondents 3 and 4, on the ground that their nominations were wrongly accepted, though they have incurred disqualiﬁcation of one category or the other. The petitioners and respondents 3 and 4 opposed the O.P. The O.P. was heard by a Bench, comprising of Chairman and Member-II. An order was passed on 10.07.2008 in the O.P. by the Chairman. He held that the matter needs a thorough probe, as regards the allegations against the petitioners and respondents 3 and 4, and accordingly, directed the District Collector and the Election Authority to appoint the Deputy Registrar of Co-operative Societies as enquiry oﬃcer, to conduct a detailed enquiry. The prayer for setting aside the election of the petitioners and respondents 3 and 4 was rejected. The Member, however, recorded his dissent and observed that he would pass his own order on 17.07.2008. In the order passed on that date, the Member arrived at almost the same conclusion as that of the Chairman, but with slight difference. Thereafter, the O.P. was posted to 22.07.2008. The matter was heard, on the question whether the opinion rendered by the Member is dissenting or concurring with that of the Chairman. Both of them took the view that it is a concurrent opinion. The District Collector was directed to appoint the Deputy Registrar of Co- operative Societies, to conduct enquiry against the petitioners and respondents 3 and 4. Learned counsel for 1st and 2nd petitioners submit that the procedure adopted by the Tribunal was untenable and is contrary to the A.P. Co- operative Tribunal (Procedure Rules), 1994 (for short ‘the Rules’). They further submit that the Tribunal had exceeded the scope of election O.P., and even while rejecting the prayer for setting aside the election, it issued a direction for enquiry. Certain other contentions are also urged. Learned Government Pleader for Co- operation and learned counsel for the 1st respondent, on the other hand, submit that the endeavour of the Tribunal was only to get to the root of the matter and a semblance of lack of unanimity, that emerged on 10.07.2008, was rectiﬁed through the impugned order, dated 22.07.2008. Sub-Section (3) of Section 61 of the Act confers jurisdiction upon the Tribunal, to adjudicate the disputes relating to, and in connection with any election to a Committee of a Society. The 1st respondent challenged the election of the petitioners and respondents 3 and 4. The ground urged by him was that the said candidates have incurred disqualiﬁcation, be it, on account of their holding individual businesses or unpaid dues to other co-operative societies. Such objection raised on the nominations ﬁled by the petitioners and respondents 3 and 4, were considered and rejected by the Election Authority. The scope of adjudication of an election petition is comparatively limited. The allegations as to disqualiﬁcation or other circumstances, that renders the election void, are to be enquired into. Similarly, any complaint about the defects in counting of votes can be examined. The end result of an election petition can be the one of setting aside the election, if the grounds recognized in law are proved, or dismissal of the same, in case they are not proved. Instances may also exist, where recounting of votes can be ordered, if a case is made out therefor. The record is not clear as to whether the Tribunal recorded any oral or documentary evidence in the O.P. and none of the two orders passed by it contains any appendix of evidence. Further, there is no mention as to the deposition of any witness. It appears that the determination was solely on the basis of the pleadings and arguments. The concluding portion of the order passed by the Chairman on 10.07.2008 reads as under: “In the result with the above discussions and conclusions in the foregone paras this appeal is allowed partly by sending the matter to the concerned authorities i.e., the District Collector and Election Authority Nalgonda with a direction to appoint an Enquiry Oﬃcer i.e., The Deputy Registrar of Cooperative Societies to conduct a detailed Enquiry by observing the principles of natural justice about the allegations/objections leveled against the R1 to R4 as pointed in the foregone paras and should complete the Enquiry and should pass orders on merits as per the procedure and provisions of the law of A.P.C.s., Act and Rules of 1964. This Enquiry shall be completed expeditiously, preferably within one month from the date of receipt of this order. The prayer of the Petitioners for setting aside the elections of the Respondents is rejected.” The opinion rendered by the Member, though at a belated stage, runs on the same lines, as also the common opinion. It is very clear that the Tribunal had categorically declined to set aside the election of the petitioners and respondents 3 and 4. With that, the O.P. must have ended in dismissal. However, a direction, which is totally unconnected to the election petition, was issued, without even indicating the basis therefor. Even while refusing to interfere with the election of the petitioners and respondents 3 and 4, the Tribunal directed an enquiry against them. Neither any reason was furnished nor any provision was referred to. A Special Court, like the Tribunal, ought to have known the parameters of its power, particularly, when it deals with the limited categories of cases. The nature of disposal given to the O.P. is not only contrary to law, but also, lacks clarity, in more respects than one. This much, about the merits of the matter. Very rarely one comes across the procedure, that was adopted by the Tribunal, in delivering its judgment. The Tribunal constituted under Section 75 of the Act, consists of a Chairman and not more than two Members, to be appointed by the Government. The procedure to be followed by the Tribunal is prescribed under the Procedure Rules. The Tribunal can function with the two Members, with or without the participation of the Chairman. It is not uncommon that views of the Members constituting the Bench may diﬀer. Rule 20 of the Rules prescribes the procedure to be followed in this regard. 20. Order:- (1) Every order of the Tribunal shall be in writing and shall be pronounced in the Court immediately after hearing or on the date ﬁxed for the purpose, which shall not be more than fifteen days from the date of final hearing. (2) The order shall be pronounced in open Court after giving notice to the parties concerned. In case the order is not pronounced on the date ﬁxed, it may be pronounced within ﬁfteen days from the date originally ﬁxed for the hearing after intimating to the chairman the reasons for the delay. (3) Where the Bench consists of more than two members the orders of the Tribunal shall be given by the majority of the members. (4) Where an appeal is heard by a Bench consisting of two members whether it consists of the Chairman or not, and the members are divided in opinion, on any point or points, such point or points, shall be referred to the Full Bench consisting of three members for disposal. (5) (6) and (7) omitted. From a perusal of this, it becomes clear that if the Bench consists of more than two members, the decision shall abide by the opinion of the majority of the members. On the other hand, if the Bench consists of two Members, and there is diﬀerence of opinion, the matter shall be referred to a Full Bench, consisting of three Members, for disposal. It has already been pointed out that the Tribunal consisting of the Chairman and one Member heard and posted the O.P. for pronouncement of orders to 10.07.2008. An order was pronounced by the Chairman. It does not appear that he has ascertained the views of the Member, before the order was pronounced. After the Chairman pronounced his order, the Member made the following observation. “I am dissenting with the ﬁndings of the Hon’ble Chairman and my orders will be ready by 17.07.2008.” On 17.07.2008, the Member pronounced a detailed order. A surprising part of it is that the conclusions arrived at by him were similar to those in the order pronounced by the Chairman. Faced with this rather piquant situation, the Chairman and the Member assembled on 22.07.2008 and passed the following order: “Heard on the aspect of whether the Member-II Order is dissenting or consenting from both the counsel even in the presence of Respondent No.1. The Hon’ble Member-II expressed his intention in writing order that there should be enquiry against all the members of the Society including Respondent No.1. Both the counsel even Respondent No.1 present in person in the Tribunal including the Hon’ble Member-II who is in the bench at one berth stated that the Collector should appoint the Deputy Registrar for conducting enquiry against the Respondent No.1 to Respondent No.4 for the allegation, leveled against the Respondent No.1 to Respondent No.4, with these deliberations it is concluded that the Chairman orders prevails and is concurred. Hence it is treated that it is Consent Order. Hence the OP is partly allowed referring to the matter to the Collector with a direction to appoint Deputy Registrar of Cooperative Societies to conduct an enquiry against the allegations of Respondent No.1 to Respondent No.4 such enquiry should be concluded expeditiously preferably with in One Month from the date of receipt of Order and the Order should is passed on Merits as per the procedure and provisions of Andhra Pradesh Cooperative Societies Act and Rules 1964.” From the above, it is clear that the Tribunal did not conduct itself in accordance with the prescribed procedure. Proper care was not at all taken, at least, to conform to the Rules. The whole episode is nothing but a sad reﬂection on the way, in which the O.P. was handled, be it, on merits or as regards the procedure. This Court faces a peculiar situation, to choose the nature of disposal to be given to these writ petitions. If they are to be allowed, and the order passed by the Tribunal is set aside, even that portion of the order under which, the relief claimed by the 1st respondent was rejected, would also stand set aside. On the other hand, if the writ petitions are to be dismissed, the various irregularities, pointed out in the preceding paragraphs, would get a seal of approval. At the same time, it is noticed that the Tribunal did not arrive at any deﬁnite conclusions, as to the pleas raised by the parties; much less any evidence was recorded. It is also felt necessary that an opportunity needs to be given to the Tribunal, to rectify the mistakes, committed by it. For the foregoing reasons, the writ petitions are allowed, and the order passed by the Tribunal on 22-07-2008, and the individual orders passed on 10-07-2008, by the Chairman, and 17-07-2008, by the Member in O.P.No.6 of 2008; are set aside. The matter is remanded to the Tribunal for fresh consideration and disposal. It is directed that the Tribunal shall arrive at, on its own conclusion, as to the alleged disqualiﬁcation on the part of the petitioners and respondents 3 and 4, without requiring any other agency to conduct enquiry. Both the parties shall be given an opportunity, to prove their respective cases. There shall be no order as to costs. _________ 05.09.2008 Note: L.R. copy to be marked. JSU THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 17593 & 18023 of 2008 Date: 05.09.2008 JSU This Court also faces a peculiar situation, to choose the nature of disposal to be given to these writ petitions. If they are to be allowed, and the order passed by the Tribunal is set aside, even that portion of the order under which, the relief claimed by the 1st respondent was rejected, would also stand set aside. On the other hand, if the writ petitions are to be dismissed, the various irregularities, pointed out in the preceding paragraphs, would get a seal of approval. At the same time, it is noticed that the Tribunal did not arrive at any deﬁnite conclusions, as to the pleas raised by the parties; much less any evidence was recorded. It is also felt necessary that an opportunity needs to be given to the Tribunal, to rectify the mistakes, committed by it. For the foregoing reasons, the writ petitions are allowed, and the order passed by the Tribunal on 22-07- 2008, and the individual orders passed on 10-07-2008, by the Chairman, and 17-07-2008, by the Member in O.P.No.6 of 2008; are set aside. The matter is remanded to the Tribunal for fresh consideration and disposal. It is directed that the Tribunal shall arrive at, on its own conclusion, as to the alleged disqualiﬁcation on the part of the petitioners and respondents 3 and 4, without requiring any other agency to conduct enquiry. Both the parties shall be given an opportunity, to prove their respective cases. There shall be no order as to costs.