IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI + WRIT PETITION No.27414 OF 2007 AND WRIT PETITION No.403 OF 2008 In WRIT PETITION NO : 27414 of 2007 Between: Padaga Ambha Bayamma W/o Venkataiah Primary Agriculture Cooperative Societies (PACS), shaligowraram, Native of Adloor, Shaligowraram Mandal Nalgonda District. ..... PETITIONER AND 1 The Government of Andhra Pradesh rep by the District Collector, nalgonda. 2 The Divisional Cooperative Officer, Nalgonda, Nalgonda District 3 The Chief Executive Officer & Secretary, Primary Agriculture Cooperative Society (PACS), Shaligowraram, Shaligowraram Mandal, Nalgonda district. 4 Mamidi Sarvayya Incharge-Chairman, Primary, Agriculture Cooperative Society (PACS), Shaligowraram Village and Mandal, Nalgonda District 5 Paduri Shankar Reddy MPTC., Native of Chittaloor Villae, Shaligowraram mandal, Nalgonda District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ, a Writ, order or direction more particularly one in the nature of writ of Mandamus or any other appropriate writ to set aside the proceedings Rc. No. 376/07-C, dated 6-11-2007 on the ﬁle of the 2nd Respondent and consequential Proceedings No. 36/07-C, dated 6-12-2007 on the file of 3rd and 4th respondents' by declaring the same as illegal, void, without jurisdiction and contrary to the provisions of A.P. Cooperative societies Act 1964 and Rues made there under and to pass such other order or orders as the Hon'ble Court may deem fit and proper. Counsel for the Petitioner : MR. M.VENKAT RAM REDDY Counsel for the Respondents : GP FOR COOPERATION IN WRIT PETITION NO : 403 of 2008 Between: D.Deva Chittam, S/o Devaiah, Primary Agriculture Cooperative Society (PACS), Shaligowraram, Shaligowraram mandal, Nalgonda District. ..... PETITIONER AND 1 The Government of Andhra Pradesh represented by the District Collector, Nalgonda. 2 The District Cooperative Officer, Nalgonda, Nalgonda District. 3 The Divisional Cooperative officer, Nalgonda, Nalgonda District. 4 The Primary Agriculture Cooperative Society (PACS) Shaligowraram, Shaligowraram Mandal, Nalgonda District represented by Chief Executive Officer. 5 Jammu Ramesh, s/o Hanumanthu, R/o Shaligowraram Village and Mandal, Nalgonda District. 6 Vangala Pratap Reddy, s/o Govinda Reddy, Chittalur Village, Shaligowraram mandal, Nalgonda District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus or any other appropriate writ by declaring the action of the 2nd and 3rd respondents in not taking steps for arranging the meeting of PACS, Shaligowraram for election/co.option of vacant Director/Members of the Managing Committee of the PACS, Shaligowraram as per the A.P., Cooperative Societies Act and Rules as illegal and consequently hold that the proceedings/Resolution dated 22-2-2007 in so far as the Election of 5th and 6th respondents as President and Director respectively of PACS, Shaligowraram in the meeting held on 22- 12-2007 and its consequential proceedings dated 24-12-2007 on the ﬁle of 4th respondent as contrary to rule 23 of A.P., Cooperative Societies Rules, 1964 and to set aside the same and to pass such other order or orders as the Hon'ble Court may deem fit and proper. Counsel for the Petitioner : MR. M.VENKAT RAM REDDY Counsel for the Respondents : GP FOR COOPERATION The Court made the following common order : *THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.27414 OF 2007 AND WRIT PETITION No.403 OF 2008 % 30/09/2008 # Pandaga Ambha Bayamma .. Petitioner in WP.No.27414 of 2007 D. Deva Chittam .. Petitioner in WP.No.403 of 2008 Vs. $ 1. The Govt. of Andhra Pradesh, rep. by the District Collector, Nalgonda., and 4 others .. Respondents in WP.No.27414 of 2007 1. The Govt. of Andhra Pradesh, rep. by the District Collector, Nalgonda., and 5 others .. Respondents In W.P.No.403 of 2008 < Gist > Head Note: ! Counsel for the petitioner in both writ petitions : Sri M. Venkatram Reddy Sri P. Shashi Kiran : Sri P.Shashi Kiran ^ Counsel for the respondents in W.P.No.27414 of 2007 : G.P. for Co-operation Sri C. Venkat Yadav Counsel for the respondents in W.P.No.403 of 2008 : G.P. for Co-operation Sri Ch. Janardhan Reddy Sri Ch. Venkat Yadav(Caveator for R5) Cases referred : [1] 2006 (1) ALD 276 2 (2001) 8 SCC 509 3 1999(2) ALT 233 (D.B.) 4 2007 (3) ALT 23 THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.27414 OF 2007 AND WRIT PETITION No.403 OF 2008 COMMON ORDER : These two writ petitions which are based on the same set of facts involving common questions for consideration are heard and decided together by this common order. The petitioner in W.P.No.27414 of 2007 is one of the Directors of the Primary Agricultural Co-operative Society (for short, ‘PACS’), Shaligouraram Village, Nalgonda District. The Managing Committee of the said society which was elected on 23.10.2005 consists of 13 members including the petitioner and the 5th respondent herein. While so, on account of the resignation tendered by the President of the society on 2.5.2007 a vacancy arose. Even prior to that, the 5th respondent on account of his election to Mandal Parishad Territorial Constituency (MPTC), Chittalur on 28.6.2006 ceased to be a member of the Managing Committee of PACS under Section 21-A(1B) of the A.P. Co-operative Societies Act, 1964 (for short, ‘the Act’). In the circumstances, the 4th respondent – In-charge Chairman of PACS in terms of the directions of the 2nd respondent - Divisional Co-operative Oﬃcer - dated 6.11.2007 convened a meeting of the committee of PACS on 22.12.2007 with a special agenda for election to the post of President and one Director of the Society. Aggrieved by the same, W.P.No.27414 of 2007 has been ﬁled contending inter alia that the proceedings of the 2nd respondent dated 6.11.2007 as well as consequential notice issued by the 4th respondent dated 6.12.2007 convening a meeting on 22.12.2007 for the purpose of ﬁlling-up the vacancy of the Member and conducting election to the post of the President simultaneously is arbitrary and illegal. It is contended by the petitioner that the 5th respondent who was elected to MPTC on 28.6.2006 ceased to be a Member of the Committee of PACS 15 days after his election to the MPTC, under Section 21-A(1B) of the Act much prior to the resignation of the President on 2.5.2007. Therefore, according to the petitioner, the 2nd respondent ought to have taken steps for ﬁlling-up the vacancy of the Member in the place of the 5th respondent in the ﬁrst instance and thereafter a separate meeting has to be convened for the purpose of election to the post of the President. Though the petitioner sought for interim suspension of the impugned proceedings, by order dated 28.12.2007 in W.P.M.P.No.35833 of 2007 this Court had only directed that the President of the newly elected Managing Committee of PACS shall not take any policy decision until further orders. In the circumstances, the meeting of the managing committee as proposed was conducted on 22.12.2007 and the election to the oﬃce of the President was held after co-opting a member in the vacancy caused due to disqualiﬁcation of the 5th respondent. Challenging the said election, W.P.No.403 of 2008 has been ﬁled by another Director of PACS seeking a declaration that the election/co-option of the respondents 5 and 6 as President and Director respectively in the meeting held on 22.12.2007 is arbitrary and illegal and to set aside the same. In W.P.No.27414 of 2007 a counter-aﬃdavit has been ﬁled by the Divisional Co-operative Oﬃcer on behalf of the respondents 1 and 2 stating that a representation was received by the 2nd respondent on 2.8.2007 from some of the members of the society complaining about the disqualiﬁcation suﬀered by the 5th respondent. Pursuant thereto, after due enquiry, the 2nd respondent issued proceedings dated 21.11.2007 disqualifying the 5th respondent w.e.f. 21.11.2007. Hence, the 5th respondent ceased to be a member of the committee w.e.f. 21.11.2007. In the meanwhile, some of the Directors also made a request to convene a meeting of the Managing Committee to ﬁll-up the vacancies arose. Accordingly the 2nd respondent by letter dated 6.11.2007 requested the 4th respondent to convene the meeting of the Managing Committee of the society within ﬁfteen days. In compliance with the same, the 4th respondent issued the impugned notice dated 6.12.2007 convening the meeting of the managing committee on 22.12.2007 to ﬁll-up the vacancy of the member and also to elect the President of the Society. In W.P.No.403 of 2008 the Divisional Co-operative Oﬃcer, Nalgonda ﬁled a counter-aﬃdavit stating that as per Bye-law No.23 of PACS, the quorum for the meeting is seven. However, out of 13 Directors since two posts were vacant, the meeting was convened on 22.12.2007 with six Directors and the election was held in which the respondents 5 & 6 were elected. It is also contended that in view of the alternative remedy available under Section 61 (3) of the Act, if aggrieved the petitioner has to raise a dispute before the Tribunal having jurisdiction and the writ petition is not maintainable. A separate counter-aﬃdavit has been ﬁled by the 5th respondent in W.P.No.403 of 2008 who was elected as President of PACS in the election held on 22.12.2007 contending that the writ petition is not maintainable in view of the statutory remedy provided under Section 61(3) of the Act before the Tribunal having jurisdiction over the area. I have heard the learned counsel for the petitioners as well as the learned counsel appearing for the respondents and the learned Government Pleader for Co-operation. From the material available on record, it is clear that the election to the Committee of PACS, Shaligouraram village was held on 23.10.2005 and 13 Directors were elected including the writ petitioner and the 5th respondent herein and among them the President was elected. However, the President tendered his resignation on 2.5.2007. Much prior to that, the 5th respondent in W.P.No.27414 of 2007 who was a member of the Committee was elected to MPTC, Chittalur on 28.6.2006. As per sub-section (1B) of Section 21-A of the Act if a member of the Committee is elected subsequently as a member of Mandal Parishad he will cease to be a member of the committee unless within 15 days from the date on which he is elected to Mandal Parishad he ceases to hold the said oﬃce by resignation or otherwise. In the light of the above mandatory provision, it is clear that the cessation is automatic and consequently the 5th respondent in W.P.No.27414 of 2007 ceased to be a Member/Director of the committee of PACS w.e.f. 13.7.2006 i.e., 15 days from the date of his election as member of MPTC on 28.6.2006. Merely because the Divisional Co-operative Oﬃcer declared his cessation long thereafter vide proceedings dated 21.11.2007, it cannot be said that the 5th respondent ceased to be a member w.e.f. 21.11.2007. In view of Section 21-A(1B) of the Act, the contention of the petitioners in both the writ petitions is that the Divisional Co-operative Oﬃcer ought to have taken steps in the ﬁrst instance for ﬁlling-up the vacancy caused in the place of the 5th respondent and only thereafter election to the oﬃce of President of PACS can be conducted following the procedure prescribed under Rule 22 (11) of the A.P. Co-operative Societies Rules, 1964 by the members of the General Body from among themselves. On the other hand, the learned Government Pleader, while pointing out that Rule 22 (11) was amended vide G.O.Ms.No.223, Agriculture and Co-operation (Coop.IV) Department, dated 27.6.2005 contended that as per the amended Rule the election of the President shall be by all the members of the managing committee of the society and not by the members of the society. For proper appreciation of the controversy involved, it is necessary to refer to Section 31 of the Act and Rule 22 (11) of the Rules which provide for election of President. Section 31. Constitution of Committees:- (1) … … … … … (2) … … … … … (3) … … … … … (4) … … …. … … (5) In the case of such classes of Co-operative Societies as may be prescribed, the President shall, subject to the provisions of Section 21-A, be elected by the members of the committee from among themselves in the manner prescribed. The President elected under this sub-section shall be an ex-officio member of the committee. Rule 22 (11) Election of President :- Notwithstanding anything contained in the bye- laws of the society, the election of the President of all classes of Primary societies shall be by all the members of the Managing Committee of the Society as provided under sub-section (5) of Section 31 of the Act. It is true that as per Section 31 (5) of the Act and Rule 22 (11) of the Rules, as they stood originally, the election of the President shall be by all members of the society. However, Section 31 (5) of the Act and Rule 22 (11) of the Rules were amended by Act No.6 of 2005 and G.O.Ms.No.223, dated 27.6.2005 respectively to the eﬀect that the election of the President shall be by the members of the managing committee instead of all the members of the society. It is also relevant to note that Rule 22-A (5) (b) of the Rules which deals with co-option, as it stood initially, provided that any vacancy other than the President that may arise due to non-ﬁling of nominations or any casual vacancy that may arise during the term of oﬃce shall be ﬁlled up by co-option by the member of the committee. However, Rule 22-A (5) (b) was also amended by G.O.Ms.No.223, dated 27.6.2005 thereby omitting the words “other than the President”. Thus, as on today, Rule 22-A (5) (b) stands as under : “Any vacancy that may arise due to non-ﬁlling of nominations or any casual vacancy that may arise during the term of oﬃce, shall be ﬁlled up by co- option by the member of the committee.” On a combined reading of the above referred provisions as amended by G.O.Ms.No.223, dated 27.6.2005, it is clear that election of the President shall be by the members of the managing committee but not by all the members of the society. Similarly, the vacancy that may arise even to the oﬃce of President can be filled up by co-option. Hence, the procedure adopted by the respondents 2 and 4 in convening the meeting of the managing committee for ﬁlling-up the vacancies of the Member and the Director simultaneously cannot be held to be contrary to law. However, the learned counsel for the petitioners vehemently contended that the so-called election held on 22.12.2007 is null and void since there was no required quorum. In support of the said contention, the learned counsel relied upon T.D. REDDY v. ELECTION OFFICER/ASST. REGISTRAR OF CO-OP. SOCIETIES, ALWAL[1]. On the other hand, the learned counsel appearing for the respondent No.5 in W.P.No.403 of 2008 while relying upon a decision of the Supreme Court in SHRI SANT SADGURU JANARDAN SWAMI (MOINGIRI MAHARAJ) SAHAKARI DUGDHA UTPADAK SANSTHA v. STATE OF MAHARASHTRA [2] as well as M.A.R.V.S. SAI BABA v. COMMISSIONER OF CO-OP. SOCIETIES[3] and CH. SRINIVASA RAO v. DISTRICT COLLECTOR/ELECTION AUTHORITY[4] vehemently contended that if the petitioners are aggrieved the only course open to the petitioners is to avail the remedy provided under Section 61 (3) of the Act by raising an election dispute before the Tribunal having jurisdiction over the area. In the case on hand, though the quorum prescribed under the bye-laws of the society is seven, admittedly, the meeting on 22.12.2007 was held with six Directors. However, by the date of meeting held on 22.12.2007, out of 13 Directors there were two vacancies. If the said two vacancies are taken into consideration, the total members of the Committee as on 22.12.2007 was only 11. In the circumstances, the respondents 5 & 6 in W.P.No.403 of 2008 contended that the meeting held with six Directors satisﬁed the required quorum and therefore their election cannot be held to be null and void. It is also relevant to note that the Divisional Co-operative Oﬃcer, Nalgonda, in his counter-aﬃdavit ﬁled in W.P.No.403 of 2008 stated that he addressed a letter to the District Co- operative Oﬃcer, Nalgonda seeking a clariﬁcation on the said issue and the clarification is awaited. Be that as it may, since as on today the entire election process has been completed, the dispute raised by the petitioners with regard to the validity of the election in the meeting held on 22.12.2007 requires adjudication only under sub-section (3) of Section 61 of the Act by raising an election dispute before the Tribunal having jurisdiction over the area. In T.D. REDDY’S case (1 supra) this Court was dealing with a situation where admittedly there was no prescribed quorum. However, in the instant case, there is a dispute with regard to the required quorum. Whether the meeting held on 22.12.2007 with six Members satisﬁed the proper quorum or not and whether the election held on that date was vitiated on that ground are all questions which cannot be gone in to by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. Hence, if aggrieved, the petitioners have to work out the appropriate remedy by raising an election dispute under Section 61 (3) of the Act if they so choose. Accordingly, granting leave and liberty, both the Writ Petitions are dismissed. No costs. ______________ G. ROHINI, J. Dt. 30.09.2008 gbs Note:- LR copy to be marked. (B/O) gbs [1] 2006 (1) ALD 276 [2] (2001) 8 SCC 509 [3] 1999(2) ALT 233 (D.B.) [4] 2007 (3) ALT 23