Sardar Ali Khan, J.
1. This batch of Writ Petitions concerns the appointment of a person or persons-in-charge till the elections are conducted to the various Co-operative Societies with consequential suitable directions to the respondents to refrain from appointing such person or persons replacing the Managing Committees till the elections are conducted.
2. With the exception of a few writ petitions, field before the passing of Ordinance No. 5 of 1990, dated June 30, 1990, all the other writ petitions challenge the provisions of the said Ordinance No. 5 of 1990, dated June 30, 1990 as being totally unconstitutional and void and fit to be struck down as such. The common prayer in all the writ petitions is to allow the elected Managing Committees of the petitioner-Societies to continue till properly elected bodies take over the Management.
3. In view of the common questions of fact and law, involved in the matter, we have heard the batch of writ petitions together and are of the opinion that the said batch of cases is liable to be disposed of by a common judgment. Of course, if there are any distinguishing features of the cases, which call for special consideration in the judgment, the same will be done, with a brief narration of the facts of the particular case to the extent it is necessary to do so in this common judgment. However, the main conclusions reached in this judgment will be applicable to all cases because the relief claimed in all these cases runs on parallel lines and can be a subject-matter of a judgment which is common to all.
4. It is proposed to first give a back ground of the ensuing litigation to appreciate the main points of controversy involved in the matter. Moreover, since the matter has been argued at length, it is deemed fit and proper to delve upon the common facts of the matter in the light of the general back ground given in this judgment.
5. Even though W.P.No. 8783 of 1990 is one which has been filed before the passing of Ordinance No. 5 of 1990, it may be treated as a basic case so far as the narration of facts is concerned for the reason that the detailed facts narrated in this writ petition will have a common bearing on all the other cases.
6. In W.P.No. 8783 of 1990 the Managing Committee of the Poduru Muleswara Weavers Co-operative Production & Sales Limited, W.G.No. 343, Poduru, represented by its President-Base Kotamallaiah, is the petitioner. The facts emerging from a close reading of the affidavit filed in support of the writ petition are as follows:
7. Elections for the petitioner-society were held in the year 1987 and the term of Office of the Managing Committee was to end by 30th of June, 1990. But, by virtue of an Amendment Act No. 16 of 1989 the term of the Office of the elected Committees were extended upto five years. In view of the said extension, the Committee became entitled for continuance in office for a period of five years from the date of election, which goes upto 30th of June, 1992. The Managing Committee convened a General Body Meeting of the Society in which it was unanimously resolved to amend its bye-laws dealing with the term of office of the Managing Committee. The earlier period of three years for the life of the Managing Committee as it existed from 1985 was extended upto five years. The bye-laws were directed to be amended by the 2nd respondent and in pursuance of the amended provisions of the Act, each of the societies coming within the purview of Act No. l6 of 1989 is to amend the bye-laws as suggested by the 1st respondent
8. The case of the petitioner-Society is that even if the term of the Managing Committee is deemed to have come to an end by June, 1990 on expire of three years, ignoring the provisions contained in Act No. 16 of 1989, it is obligatory on the part of the respondents to take steps to conduct elections to the Society before the expire of such period, i.e., 30th June, 1990. However, the respondents have failed to take any such steps under the notion that these Committees are entitled to continue in office upto 30th June, 1992. The petitioner further submits that as a result of a policy-decision taken by the Government steps were taken to appoint a person or persons-in-charge to look after the affairs of the Societies in Andhra Pradesh. This decision, though not communicated Or published, was deemed to have come into effect from 1st July, 1990. The further contention raised by the petitioner is that it is not open to the authorities to appoint any person or persons-in-charge to look after the affairs of the society and the petitioner-Managing Committee should be allowed to continue in office till the elections are conducted. The Managing Committee takes pride in the fact that it has suffered no adverse comments from any one and it has been discharging its duties strictly in accordance with the terms of the statute and the bye-laws applicable to such societies. It may be mentioned that the basic submission made by all the petitioner-Societies is that even if it becomes necessary to appoint a person or persons-in-charge, it is only the Members of the Managing Committee who should be appointed as such and not any outsiders and certainly not paid-officials working in the Co-operative Department or other Departments of the State Government. This principal submission is based upon a decision of a Division Bench of this High Court, reported in M. Ranga Reddy. v. State, in which it was held that the persons-in-charge shall be appointed from among the members of the Committee if the Committee has not been held to be guilty of any malpractices and has acquitted itself in an honourable fashion.
9. As stated earlier, W.P.No. 8783 of 1990 is one of those cases which has been filed before the promulgation of Ordinance No. 5 of 1990 and, therefore, there was no occasion to challenge the provisions of the said Ordinance No. 5 of 1990 in that Writ Petition. A majority of the Writ Petitions, which have been filed after the promulgation of the said Ordinance, has squarely challenge the provisions of the said Ordinance No. 5 or 1990, dated June 30,1990.
10. In order to indicate the object and purport of the Ordinance, it will not be out of place to re-produce the Ordinance itself in this judgment, which happens to be a short document so that its various provisions may be discussed in all its ramifications in the light of the case law, which has developed on the subject
11. Ordinance No. 5 of 1990, dated June 30, 1990 is in the the following terms.
'Following Ordinance, which was pro 30th June, 1990, is hereby first published for general information:- Andhra Pradesh Ordinance No. 5 of 1990.
Promulgated by the Governor in the Forty First Year of the Republic of India. An Ordinance further to amend the Andhra Pradesh Co-operative Societies Act, 1964.
Whereas the Legislative Assembly of the State is not in session and the Governor of Andhra Pradesh is satisfied that circumstances exist which render it necessary for him to take immediate action:
Now, therefore, in exercise of the powers conferred by Clause (1) of Article 213 of the Constitution of India, the Governor hereby promulgates the following Ordinance: -
short.title and commencement:-
1. (1) This Ordinance may be called the Andhra Pradesh Co-operative Societies (Amendment) Ordinance, 1990.
(2) It shall come into force at once.
Amendment of Section 31, Act 7 of 1964:-
2. In the Andhra Pradesh Co-operative Societies Act, 1964 (hereinafter referred to as the principal Act), in Section 31, in Sub-section (2), in Clause (a), for the words 'five years', the words 'three years' shall be substituted. Insertion of New Section 32-A:
3. After Section 32 of the Principal Act, the following section shall be inserted, namely:-
'Bar to interference by courts in the matter of appointment of persons-in-charge:-
32.A. Notwithstanding anything in this Act, no court shall,-
(i) direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office; or
(ii) entertain any proceeding challenging the appointment of a person-in-charge by the Government or as the case my be, the Registrar.'
Committees continuing in Office beyond the term to cease to function:-
4. (1) Every Committee constituted before the commencement of the Andhra Pradesh Co-operative Societies (Amendment) Ordinance, 1990, and has completed three years of term of Office on or before such commencement shall cease to hold office on such commencement and every such Committee which completes three years of term of office after such commencement shall cease to hold office on such completion.
(2) Not with standing anything in Clause (b) of Sub-section (2) of Section 31 of the principal Act, elections to such societies whose committees case to hold office shall be held by the Registrar within a period of six months from the date of commencement of the said Ordinance, in accordance with the provisions of the principal Act and the rules made thereunder:
Provided that the Government may, by order and for reasons to be recorded in writing, extend from time to time, the period of six months aforesaid, so however the total period shall not exceed one year from the date of commencement of the said Ordinance.
Krishna Kant,
Governor of Andhra Pradesh'
12. At the out set we would like to deal with the question of the validity of Ordinance No. 5 of 1990, which has been challenged with varying degree of emphasis by several learned counsel appearing for the petitioners. It may be mentioned that while a concerted attack has been made on the validity of the Ordinance by some of the counsel, there are others who have emphasized the point only upto a certain extent stating that the validity of the Ordinance should also be considered from the constitutional point of view.
13. It would not be out of place to mention here that Ordinances are supposed to be temporary measures and if we examine the etymological and dictionary meaning of the word 'Ordinance', it comes to light that the word is derived from the Latin word 'Ordo' which means something which is uncommon in an unusual or extraordinary manner etc. In Murray James A.H., a New English Dictionary on Historical Principles, Oxford, 1905, Volume VII Part-I Page 186, Column 2 the word 'Ordinance' is defined for legal purposes as 'an authoritative direction, decree or command; in more restricted sense, a public injunction or rule of narrower scope, less permanent, nature, or less constitutional character than a law or statute, as a decree of a sovereign, an enactment of a municipal or other local body etc'. This clearly indicates that the word is appropriate only for minor or temporary measures.
14. Under Article 123, which falls under Chapter III under the heading 'Legislative Powers of the President', the power of the President to promulgate Ordinances during recess of Parliament has been provided. Similarly under Article 213 of the Constitution of India under Chapter IV falling under the heading 'Legislative Power of the. Governor' the power of Governor to promulgate Ordinances during recess of Legislature is mentioned. Both the Articles dealing with the question of promulgation of Ordinances run on parallel lines. It would be fit and proper to re-produce both the Articles in this judgment to to make a comparative study of the provisions of the same.
15. Article 123 of the Constitution of India is in the following terms:-
'123. Power of President to promulgate Ordinances during recess of Parliament:-
(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation: - Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.'
Article 213 of the Constitution of India is in the following terms:-
'213. Power of Governor to promulgate Ordinances during recess of Legislature:-
(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if.
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance-
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor.
Explanation:- Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the president shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.'
16. A reading of the above said two articles clearly reveals the point that the President has got the power to promulgate Ordinances during recess of Parliament. When both Houses of Parliament are not in session, the President must be satisfied that circumstances exist which render it necessary for him to take immediate action to promulgate such Ordinance and the Ordinance promulgated under Article 123 shall have the force and effect as an Act of Parliament. There are other details with regard to laying of the Ordinances promulgated by the President before both the Houses of the Parliament and the duration of six weeks during which it is said to be operative. Similarly under Article 213 the Governor of a State may, at any time, except when the Legislative Assembly of a State is in session or in case there is a Legislative Council when both 'louses of the Legislature are in session, may, if he is satisfied that the circumstances exist which render it necessary for him to take immediate action, promulgate such Ordinances as the circumstances appear to him to require. We are not concerned in strict sense with the other provisions of Article 213 of the Constitution which prescribe certain limitations on the existing power of the Governor or the State Legislature, as the case may be, which have to be taken into consideration before the promulgation of the Ordinances by the Governor of a State. It is to be noted that Clause (4) of Article 213 has been omitted by Forty-Forth Amendment Act of 1978 with effect from 20-6-1979. It would be pertinent to take a look at the historical development of law regarding promulgation of Ordinances in our Constitution culminating in Articles 123 and 213 of the Constitution of India in the back ground of the provisions pertaining to Ordinances under the Government of India Act of 1935. Section 42 of the Government of India Act, 1935. conferred power on the Governor General to promulgate Ordinances during the recess of the Federal Legislature. A similar power was conferred under Section 88 of the Government of India Act, 1935 on the Governor to promulgate Ordinances during the recess of the State Legislature. The present Article 123 of the Constitution can, therefore, be said to be a far end from Section 42 of Government of India Act, 1935 and similarly the provisions of Article 213 can be traced back for its historical antecedent to Section 88 of the Government of India Act, 1935. The constitutional theory behind the promulgation of Ordinances is to secure flexibility both for the Union and the State Federal Units to enact laws to meet emergent situations as also to meet circumstances created by laws being declared void by courts of law. During the debate of the Constituent Assembly about the powers of the President to promulgate Ordinances, several members expressed apprehensions that such scheme may result in a rule by Ordinance which would be an anatheme to the concept of Parliamentary democracy in India. Dr. Ambedkar in his succinct reply to such apprehensions expressed by the members of the Constituent Assembly said:
'... Therefore, I say, having regard to Article 69, having regard to the exigencies of business, having regard to the necessity of the Government of the day to maintain the confidence of Parliament, I do not think that any such dilatory process will be permitted by the Executive of the day as to permit an ordinance promulgated under Article 102 to remain in operation for a period unduly long, and I, therefore, think that the provisions as they exist in the draft article might be permitted to remain.'
The concept of the promulgation of Ordinances provided in our Constitution is a legacy of the inalienable links existing between our Constitution and the Constitutional Laws of England. The primary object of the promulgation of the Ordinance, therefore, is that when the Parliament or the State Legislature is not in session and there is a situation which demands immediate action to be taken either for the preservation of law and order or in the interests of, peace, order and good Government of the day, the Executive personified in the President at the central level and the Governor at the State level should be given the legislative power to enact Ordinances to meet the emergent situation for a limited period of time. It is an accepted theory of constitutional law that such Ordinance rank on par with the Legislative enactments passed by the Legislature at the centre or the State, as the case may be.
17. The Supreme Court in a judgment reported in T. Venkata Reddy v. State of A.P., AIR 1985 SC 72 has expressed the well known judicial verdict about the scope and ambit of the Ordinances promulgated under Articles 123 and 213 of the Constitution. Dealing with the question of the Constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers Ordinance, 1984 (Ordinance No. 1 of 1984) promulgated by the Governor of Andhra Pradesh on 6th January, 1984 in exercise of the powers under Article 213 of the Constitution, the Supreme Court expressed the opinion that it is a well settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned dependent upon the subject-matter of the statute and the manner in which it is accomplished and the mode of enacting it The Supreme Court further observed that the motives of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. The Ordinance making power is legislative power and an ordinance making power is legislative power and an ordinance shall have the same force as an Act. An Ordinance should be clothed with all the attributes of an Act of legislature carrying with it all its incidents, immunities and limitations under the Constitution. Therefore, it is clear that in accordance with the Supreme Court's decision, the court is precluded from inquiring into the propriety of the exercise of the legislative power and there is an assumption that the legislative discretion has been properly exercised. However, the specific question of the subjective satisfaction of the President or the Governor, as the case may be, under Article 123 or under 213 of the Constitution of India has come up for consideration in A.K. Roy v. Union of India, : 1982CriLJ340 wherein the Supreme Court held that an Ordinance issued by the President or the Governor is as much law as an Act passed by the Parliament and is subject to the same limitations. The legislative power under the Constitution can be exercised by the President and the Governor and is capable of being fully legislative in character within the contemplation of the Constitution. The Supreme Court further held that the ordinance is law within the meaning of Article 21 and there was no justification for construing that the term 'law' should be construed to mean only law made by the legislature and not an ordinance promulgated by the President or the Governor under the provisions of Article 123 or 213 of the Constitution respectively. Another significant observation made by the Supreme Court in the above case is the question whether the pre-conditions of the exercise of the power conferred by Article 123 are satisfied cannot be regarded as a purely political question. The Supreme Court observed that in Rajasthan Case reported in State of Rajasthan v. Union of India, : [1978]1SCR1 which is often cited as an authority for the proposition that the courts ought not to enter the 'political thicket', is based on Clause (5) of Article 356, which was inserted by the 38th Amendment by virtue of which the satisfaction of the President mentioned in Clause (1) was made final and conclusive and that satisfaction was not open to be questioned in any court on any ground. However, with the deletion of Clause (5) in Article 356 by the 44th Amendment Act the observations made in the Rajasthan case : [1978]1SCR1 no longer hold good. Therefore, the Supreme Court came to the conclusion that it is arguable that the 44th Constitution Amendment Act leaves no doubt that judicial review is not totally excluded in regard to the question relating to the President's satisfaction. However, the Supreme Court had no occasion to go deeper into the matter of justiciability of the President's satisfaction in A.K. Roy v. Union of India (3 supra) for the reason that the Ordinance was replaced by an Act Therefore, it was held that/ the question whether the President's satisfaction was actually justiciable or not had become academic in nature and need not be considered at length by the Supreme Court. It may, however, be mentioned here that in A.K. Roy v. Union of India (3 supra) a significant observation has been made with regard to the justiciability of the President's satisfaction under Article 123(1). It was observed by the Supreme Court that the question whether the President's satisfaction is governed by the rule of burden of proof contained in Section 106 of the Evidence Act is not free from doubt. Nevertheless, if we are to proceed on the basis that existence of circumstances which lead to the passing of the Ordinance is specially within the knowledge of the executive before casting burden on the executive to establish those circumstances, a prima faces case must be made out by the challenger to show that there could not have existed any circumstances necessitating issuance of the ordinance. Every casual or passing challenge to the existence of circumstances which rendered it necessary for the President to take immediate action by issuing an ordinance will not be enough to shift the burden of proof to the executive to establish those circumstances. In our opinion the above mentioned dictum of the Supreme Court is of great and far reaching importance with regard to the justiciability of the subjective satisfaction of the President or the Governor, as the case may be, in issuing an Ordinance. It may be taken as a fairly well-settled proposition of law by now that if the initial burden cast upon the challenger is discharged at least in a prima facia manner showing that no circumstances had been placed before the governor for his consideration or that the circumstances relied upon did not exist in fact or that from an appreciation of facts it would be impossible for any reasonable person to form any opinion of the kind arrived at by the Governor or that the satisfaction has been arrived at without any application of mind to the relevant circumstances or have no rational connection to the object of the promulgation of the Ordinance, then the burden would undoubtedly shift to the executive to discharge under Section 106 of the Evidence Act of proving that in fact the subjective satisfaction has been arrived at in accordance with the norms set by the Constitution.
18. In R.K. Garg v. Union of India, AIR 1981 S.C. 2138 the power of issuing ordinance by the President has been elaborately discussed. The Supreme Court held that the legislative power of the President under Article 123 to promulgate an Ordinance is co-extensive with the power of the Parliament to make laws and no limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend tax laws. The legislative power conferred on the President under Article 123 is not supposed to be a parallel power of legislation but it indicates that the President is invested with this legislative power to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. The reasoning given by the Supreme Court in R.K. Garg v. Union of India (5 supra) applies mutatis mutandis to the power of the Governor exercised under Article 213 of the Constitution.
19. The case of R.C. Cooper v. Union of India, : [1970]3SCR530 is an authority for the proposition that the President, being the constitutional head, normally acts in all matters including the promulgation of an Ordinance on the advice of his council of Ministers. The ordinance is promulgated in the name of the President and in a constitutional sense on his satisfaction and it is in truth promulgated on the advice of his council of Ministers and on their satisfaction. The President is under the Constitution not the repository of the legislative power of the Union and with a view to meet extraordinary situations demanding immediate enactment of laws, provision is made in the Constitution investing the President with power to legislate by promulgating Ordinances. The Supreme Court considered the scope of the power of the President to promulgate an Ordinance. Nevertheless since the Ordinance in question in that case was repealed by Act No. 22 of 1969, the question of its validity became academic and no opinion was expressed with regard to the jurisdiction of the court to examine whether the condition relating to satisfaction of the President was fulfilled or not. In Barium Chemicals Ltd. v. Company Law Board, AIR 1978 S.C. 295 the Supreme Court held that it was not correct to say that judicial review was totally ousted whenever the Legislature empowered the authority to act upon his subjective satisfaction as to specified circumstances. The majority view was that since subjective satisfaction was made a condition precedent to the exercise of the power it was open to the petitioner to show that condition precedent did not exist. The change in the judicial attitude on the question of reviewability of a subjective determination has come about in the wake of the decisions discussed above. It may be mentioned here that even in England new ground seems to have been broken in Padifiled v. Minister of Agriculture Fisheries and Food, 1968-I All E.R. 694 wherein it was held that the court can interfere if it finds that there were no materials upon which the authority would find the subjective opinion.
20. It would be pertinent to mention here that in view of the minority opinion expressed in R.C. Cooper's case (6 supra) Clause (4) of Article 123 as well as Clause (4) of Article 213 of the Constitution were inserted by enacting 38th Amendment Act 1975 to expressly provide that the 'satisfaction' of the President or of the Governor, as the case may be, shall not be questionable in any court on any ground but the said Clause (4) in both the Articles has been deleted by 44th Amendment Act 1978 so as to leave the field in the same position as it was on the date of the decision in R.C. Cooper's case (6 supra).
21. It would be relevant to mention here that the question of President's satisfaction under Article 356 (1) was considered in the case of State of Rajasthan v. Union of India (4 supra). The question before the court was whether a situation had arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution in the State of Rajasthan. The unanimous view expressed by the Supreme Court, even though as many as six separate judgments were delivered by the Bench, is that the allegations of mala fides were not established in these cases. But, in each of the opinions it was stated that it was open for the parties to establish that the proclamation was issued on irrelevant grounds, i.e., grounds extraneous to Article 356 notwithstanding Clause (5) excluding judicial review which had then been inserted into Article 356.
22. In the back ground of the fore-going it would be fit and proper to sum up the result of the discussion indulged in, so far, with regard to the question of justiciability of the subjective satisfaction of the executive in promulgating an Ordinance in the light of the various decisions of the Supreme Court. Even though the Supreme Court has refused to consider the question of justiciability of President's satisfaction in depth in the several cases cited above, as there was no occasion to do that, for the reason that the Ordinance had been replaced by an Act of Parliament but the factor which clearly emerges from the various cases decided by the Supreme Court is that if a prima facie case is made out by the challenger to show that there could not have existed any circumstances necessitating the promulgation of an Ordinance, then the court would have the jurisdiction to go into that question and decide the matter on the totality of the circumstances existing in a particular case. Once a prima facie case is established, the burden will be shifted to the executive to establish those circumstances which warranted issue of an Ordinance by the executive. The above said view is fortified by the fact that in 1979 Clause (4) in Article 123 and Clause (4) in Article 213 and Article 239-B were omitted by Sections 16, 27 and 32 respectively of the Constitution (Forty-Fourth Amendment) Act, 1978. In A.K. Roy v. Union of India (3 supra) it was argued before the Supreme Court that the deletion of Clause (4) in the above mentioned articles was a positive indication that the Parliament wants the satisfaction of the executive in making an Ordinance as final and conclusive but wanted it to be open to the judicial scrutiny. The significant observation of the Supreme Court in hat case is that it is arguable that the 44th Constitution Amendment Act leaves no do not that judicial review is not totally excluded in regard to the question relating to the President's satisfaction. However, since the Ordinance was replaced by the Act of Parliament, the Supreme Court did not think it necessary to go in depth into the question of justiciability of the President's satisfaction. What is the end result of the above discussion? The answer to that question seems to be that the proposition that the discretion exercised by the President or the Governor or the Administrator under Articles 123, 213 and 293-B in issuing an Ordinance is not justiciable, is no longer tenable. The power to promulgate Ordinance has ascertainable limits and the existence of the circumstances and their relevance for or the formation of opinion in regard to necessity to take immediate action and promulgate Ordinance is justiciable. Therefore, it is now open to the Court to examine whether the circumstances necessitating the promulgation of an Ordinance at a particular time existed or not. The constitutionality of the Ordinances issued from time to time by the executive from the point of view of subjective satisfaction of the concerned authorities can now be questioned in courts and the same have become justiciable in the eye of law.
23. It is in this back ground that an approach will have to be made to see whether a prime facie case has been made out for laying a challenge to the provisions of the A.P. Ordinance No. 5 of 1990 in this case. As stated earlier, the counsel have stressed this point with varying degrees of emphasis. The A.P. Ordinance No. 5 of 1990 has been promulgated on June 30, 1990 with a view to amend the provisions of the Andhra Pradesh Co-operative Societies Act, 1964. It is not in dispute that at the time of the promulgation of the Ordinance the Legislative Assembly of the State was not in session and it is stated that the Governor of Andhra Pradesh was satisfied at the time of the promulgation of the Ordinance that circumstances existed which rendered it necessary for him to take immediate action. The Legislative Assembly was prorogued by G.O.Ms.No. 28 Legislature (Legn) Secretariat, dated May 30, 1990 by the Governor of Andhra Pradesh. The notification issued in this respect states that in exercise of the powers conferred by Sub-clause (a) of Clause (2) of Article 174 of the Constitution of India, the Governor of Andhra Pradesh prorogued with effect on and from the 30th May 1990 the second session of the Andhra Pradesh Legislative Assembly. The Ordinance has been promulgated on 30th June, 1990 when obviously the Legislative Assembly was not in session and on the satisfaction of the Governor that circumstances existed which render it necessary for him to take immediate action.
24. Under Clause (2) of the Ordinance it is provided that in the Andhra Pradesh Co-operative Societies Act, 1964 in Section 31, in Sub-section (2), in Clause (a), for the words 'five years', the words 'three years' shall be substituted. We would have occasion to discuss further regarding the curtailment of the term of office of the committee from five years to three years from the date of the election of the members of the committee later in this judgment while discussing the legality and propriety of the appointment of persons under Section 32(7)(a) of the A.P. Co-operative Societies Act, 1964, herein after referred to as the 'Act'. Under Clause (3) of the Ordinance it is provided that notwithstanding anything in this Act, no court shall (i) direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office; or (ii) entertain any proceeding challenging the appointment of a person-in-charge by the Government or as the case may be, the Registrar. Several counsel have submitted that there is already a provision enumerated as Section 32-A in the Act and, therefore, the Ordinance cannot introduce yet another Section 32-A in the presence of the earlier section. In our opinion this is a minor numerical error which need not be taken into consideration at any great length while discussing Clause (3) of the Ordinance. In the body of the section suitable numbering can be made for the provision contained therein.
25. Under Clause (4) of the Ordinance it is provided that (1) every Committee constituted before the commencement of the Andhra Pradesh Co-operative Societies (Amendment) Ordinance, 1990 and has completed three years of term of office on or before such commencement shall cease to hold office on such commencement and every such Committee which completes three years of term of office after such commencement shall cease to hold office on such completion. Under Sub-clause (2) of Clause 4 it is provided that notwithstanding anything in Clause (b) of Sub-section (2) of Section 31 of the principal Act, elections to such societies whose committees cease to hold office shall be held by the Registrar within a period of six months from the date of commencement of the said Ordinance in accordance with the provisions of the principal Act and the rules made thereunder; provided that the Government may, by order and for reasons to be recorded in writing, extend from time to time, the period of six months aforesaid; so however the total period shall not exceed one year from the date of commencement of the said Ordinance. As stated earlier, the implications of the various clauses of the Ordinance have been discussed in minute detail to see whether there is any constitutional infirmity attached to the Ordinance.
26. We have given our earnest and anxious consideration to the argument advanced by the learned counsel assailing the validity of the Ordinance, in this matter and are of the opinion that no prima facie case has been made out on the basis of which it could be held that the Ordinance suffers from any constitutional or legal infirmity. On the first aspect of the matter we are satisfied that the Ordinance has been issued on the basis of the satisfaction of the Governor arrived at in accordance with the settled norms and conditions of such satisfaction.
27. The second major question to be considered in this batch of writ petitions is whether the promulgation of the Ordinance cutting down the life of the Managing Committees of the various Co-operative Societies from five years to three years and postponing elections beyond a period of six months or one year, as the case may be, is destructive of democratic norms inherent in the running and management of a Co-operative Society and is also arbitrary and illegal within the provisions of the statute governing the functioning of the Managing Committees of the Co-operative Societies. In all the cases argued before us this point has been consistently argued by all the learned counsel who have laid emphasis on the alleged illegal aspects of the Ordinance by virtue of which the term of the Managing Commidees have come to an abrupt end on the expiry of three years as against five years which was granted to them earlier. Before proceeding to consider the manifestations of the various arguments advanced on this aspect of problem, we consider it necessary to first have a look at the various provisions of the Andhra Pradesh Co-operative Societies Act, 1964, having a bearing on the above matter,
28. The relevant sections of the Andhra Pradesh Co-operative Societies Act, 1964, which fall for consideration in this regard, are Sections 30 to 34 under Chapter IV of the said Act. Under Section 30 it is stated that subject to the provisions of the Act, the Rules and the Bye-laws, the ultimate authority of a society shall vest in the General Body provided that nothing in the said clause shall affect the exercise by the Committee or any Officer of a society of any power conferred on such Committee or Officer by the Act, the Rules or the Bye-laws. The rest of Section 30 dwells upon the power of the Registrar and the area of operation of a society which need not be considered for the purpose of this batch of writ petitions. Under Section 31 of the said Act it is provided that the general body of a society shall constitute a Committee in accordance with the Bye-laws and entrust the management of the affairs of the society to such Committee. Since the controversy arising in this batch of Writ Petition is intimately and directly connected with the provisions of Section 31 of the Act, it would not be out of place to re-produce the relevant portion of Section 31 of the Act, which is in the following terms:
Section 31 Constitution of Committees:-
'(1)(a) The general body of a society shall constitute a committee in accordance with the bye-laws and entrust the management of the affairs of the society to such committee:
xx xx xx(2)(a) Save as otherwise provided in this Act, the term of office of the Committee or of any of its members shall be five years from the date of election of the members of the Committee.
(b) It shall be the duty of the Registrar to hold elections to the office of the members of the committee before the expire of their term'.
A detailed and minute analysis will have to be made to the relevant provisions of Section 31 (2)(a) and (b) while discussing the various issues arising in this matter. However, for the present it may be stated that under Section 31 of the Act the constitution of the Committees is provided and its duration under Section 31(2)(a) has been determined with an injunction to the Registrar that it shall be his duty to hold elections to the office of the members of the Committee before the expire of their term. Section 32 of the Act is of great significance for the purpose of the issues arising in this batch of Writ Petitions as it deals with the general meetings and committee meetings. The relevant clauses of Section 32 which calls for consideration in this batch of Writ Petitions are re-produced hereunder:
Section 32 General Meetings and Committee Meetings:-
'(1) The Committee may, at any time, call a general meeting of a society, but such meeting shall be held within six months of the end of the Co-operative Year.
(1-A) If the General meeting is not convened in accordance with the provisions of Sub-section (1), the members of the committee shall cease to hold office on the day next after the last day on which the general meeting should have been held, and it shall be competent for the Registrar, notwithstanding anything in the bye-laws, to call such general meeting in such manner as may be prescribed'.
xx xx xx(6) Notwithstanding anything in this Chapter, if at any time the Government are satisfied that circumstances exist which render it necessary for them to call a general meeting for election of members of the committee, to be held in accordance with the provisions of this Act, the Government or any person authorised by them in this behalf shall have power to call such meeting and to determine the place, time and the period of notice of such meeting. If at such meeting there is no quorum, the meeting shall stand adjourned to such other date and time as the Government or person authorised may determine. If at the adjourned meeting also there is no quorum for holding the meeting, the members present shall constitute the quorum. When the meeting is called by the Government it shall be presided over by a person appointed by them in that behalf and if the meeting is called by the person authorised by the Government, the person so authorised shall preside at such meeting; but the person presiding shall not be entitled to vote at the meeting so called or adjourned.
(7)(a) If there is no committee or in the opinion of the Government or, the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the committee, the Government, in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a period not exceeding six months and the Government may, on their own and the Registrar with the previous approval of the Government, extend, from time to time, such period beyond six months, so however that the aggregate period include the extended period if any, shall not exceed two years.
(b) The person or persons so appointed shall, subject to the control of the Government or as the case may be, of the Registrar and subject to such instructions or directions as they may issue, from time to time, have power to exercise all or any of the functions of the committee or any officer of the society and to take all such actions as may be required in the interest of the society.
(c)xx xx xx(d) The Registrar may, at any time, and shall at the expiration of the period of appointment of person or persons so appointed, arrange for the calling of a general meeting for the election of a new committee in such manner as may be prescribed. The person or persons so appointed shall cease to manage the affairs of the Society on the new Committee entering upon its office.xx xx xx
The above provisions of Section 32 are of crucial importance and will require a detailed consideration to arrive at a conclusion in all the cases on hand. The salient features which may be pointed out at this stage are contained in Section 32(7)(a), (b) and (d) which provide for the appointment of a person or persons to manage the affairs of the society for a specified period of time under certain contingencies. It also provides the control of the Government or the Registrar over the person or persons appointed under Section 32(7)(a) and the extent to which they have discharged their duties in accordance with the directions given by them. Under Sub-section (7)(d) of Section 32 it is provided that the Registrar shall at the expiration of the period of appointment of person or persons so appointed, arrange for the calling of a general meeting for the election of a new committee in such manner as may be prescribed. Under Section 33 of the Act nominee of the Government on the committee may be appointed in cases where the Government have subscribed to the share capital of a society or have assisted indirectly in the formation or augmentation of the share capital of a society or have guaranteed the repayment of principal and payment of interest on debentures issued by a society. Under Section 34(1) discretion is vested in the Registrar to supersede the committee which is not functioning properly or willfully disobeys or willfully fails to comply with any lawful order or direction issued by the Registrar. It may be made clear at this juncture that the case on hand is not one of supersession of the committee and, therefore, we may not be required to go into that aspect of the problem in so far as Section 34 of the Act is concerned because this is a case where the term of the committee is deemed to have come to an end under the impugned Ordinance No. 5 of 1990 issued by the Executive.
A brief reference has bean made in the above manner to the various provisions of the Statute to show that the lis arising in these cases is one which has to be resolved primarily within the provisions of the statute which are stated above. The question of formation of the committee, the term for which they are elected, the question of elections to such committees and the question of appointment of persons under Section 32(7)(a) of the Act pending the elections of the members of the Managing Committees are all matters which, in our opinion, are to be answered by virtue of interpretation of the above sections in accordance with the settled principles of interpretation of statutes of the nature like the one we have in the A.P. Co-operative Societies Act, 1964.
29. Now, it is proposed to go into the greater detail of the object which the Ordinance seeks to achieve. However, before dealing with this aspect of the problem, it would be necessary to consider another issue of considerable importance with regard to the term of office of the Committee or of any of its members as laid down under Section 31 (2)(a) of the Act.
30. It may be seen that under Section 31 (2)(a) in its original form, the term of office of the Committee or of any of its members was fixed by the bye-laws subject to a maximum of two. years. Thereafter, in 1966 the maximum period so fixed was raised to three years. In the year 1985 by virtue of the A.P. Co-operative Societies (Amendment) Act, 1985, for the first time, the term of office of the Committee was statutorily fixed as three years. This means that the term of office was no longer left to be fixed by the bye-laws, but it acquired statutory status in Section 31(2)(a) of the Act and was fixed as three years. The A.P. Co-operative Societies (Amendment) Act, 1989 was passed and the period of three years was enhanced to five years. Therefore, it is under Section 31(2)(a) of the Act the term of office of the Committee or of any of its members was fixed as five years from the date of election as members of the said Committee. Now, what does an analysis of the fluctuation in regard to the term of office of the Committee show' It shows that initially the term was fixed as two years under the bye-laws. Then it was enhanced to three years as provided under the bye-laws of the Society. For the first time the term of office was given the statutory status by virtue of the Amendment Act No. 2 of 1985 and the period remained as three years. Thereafter, by virtue of an amendment in 1989, referred to above, the term has been statutorily fixed as five years under the Amendment Act of 1989. The principle to be deduced from the above events is that the term of office of the Managing Committee has been a fluctuating phenomenon and ha been now fixed as five years.
31. The other matter which can be conveniently considered here itself and which has been stressed consistently by all the learned counsel appearing for the Petitioners is the provision under Section 31(2)(b) which states that it shall be the duty of the Registrar to hold elections to the office of the members of the Committee before the expire of their term. Learned counsel have argued that Section 31 (2)(b) casts an obligation of a positive nature on the Registrar of the Co-operative Societies to hold elections to the office of the members of the Committee before the expire of their term. The obvious inference down from a reading of the concerned section and, perhaps, to a certain extent quite rightly is that it is the duty of the Registrar to organise elections to the office of the members of the Committee before the expiry of the term of the old Managing Committee. The genesis of this provision in the statute is traced to the concept of the democratic principle inherent in the co-operative movement that a body is invariably to be governed by an elected Managing Committee. In other words, the argument proceeds on the ground that for the functioning of a Co-operative Society, an elected Managing Committee is sine qua non for its efficient functioning. Indeed, learned counsel have tried to substantiate their contention in this regard by citing various decisions which have a bearing on the matter which will have to be considered in this judgment However, before considering the case law on the subject it would be necessary to examine the various provisions of the Act to find an answer within the precincts of the statute.
32. Under Section 32(7)(a) it is postulated that if there is no committee or in the opinion of the Government or the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the Committee, the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a period not exceeding six months. It is also stated that the Government may on their own and the Registrar with the previous approval of the Government, extend from time to time such period beyond six months so however that the aggregate period so extended shall . not exceed two years. Under Section 32(7)(b) the control of the Government or the Registrar, as the case may be, is to be exercised over the person or persons so appointed under Section 32 (7) (a) of the Act. The question to be considered in this regard is what is the object and scope of Section 32 (7) (a) of the Act and what does the said section seek to achieve in the frame work of the statute. Under Section 32 (7) (a) a definite provision is made that if there is no committee or in the opinion of the Government or the Registrar it is not possible to call a general meeting for the purpose of conducting election of members of the Committee the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a specified period of time. It means that if due to any reasons it is not possible to hold elections the authorities concerned have the right to appoint a person or persons to manage the affairs of the society. It further means that by the appointment of such person or persons the continuous functioning of the society concerned is ensured. Further more, inherent in the principle contained in Section 32 (7) (a) of the Act is the point that if it has become impossible to hold elections and due to certain circumstances beyond control, then to ensure the continuity of the society and more for the effective discharge of its obligations, the Government or the Registrar, as the case may be, may appoint a person or persons under Section 32 (7) (a) of the Act. We may point out here that the person who is to be appointed under Section 32 (7) (a) has been invariably referred to by almost all the counsel of either side as a person-in-charge, a term which is not used in Section 32 (7) (a) itself but in view of the common acceptation of the term we are also referring in this judgment to the person contemplated to be appointed under Section 32 (7) (a) as'a person-in-charge'.
33. Now, it shall be our endeavor to contrast and compare and indeed to harmonious the provisions of Section 31 (2) (b) with Section 32 (7) (a) of the Act. Under Section 31 (2) (b) it is the duty of the Registrar to hold elections to the office of the members of the committee before the expire of their term. But, under Section 32 (7) (a) it is provided that if there is no committee or in the opinion of the Government or, the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the Committee, then a person or persons to manage the affairs of the society may be appointed. The Legislature, therefore, has contemplated a situation arising wherein it would not be possible to hold elections, say, due to certain calamities happening in the country or due to a situation under which it may not be possible to call for a general meeting for the purpose of conducting elections. To meet an emergent situation like the one contemplated under Section 32 (7) (a), it is well within the power of the Government or the Registrar to appoint a person or persons-in-charge for the reasons which we discussed above. If we are to interpret Section 31 (2) (b) as a section in a water-tight compartment, alien and divorced from the other provisions of the Act, then Section 32 (7) (a) is rendered nugatory. Learned consel for the petitioners would have asked this court to interpret Section 31 (2) (b) as a provision casting a positive obligation which is to be discharged by the Registrar under all circumstances. If that is so and if the argument so advanced holds water, then the Legislature need not have promulgated Section 32 (7) (a) at all which provides for an alternative to the Managing Committee by appointment of person or persons-in-charge under a given set of circumstances. The well settled rule of interpretation from the times of HAYDEN'S case is that the provisions of the statute are to be read in a harmoneous fashion. The object of the Act is to be kept in view while interpreting the provisions of a statute. It is not to be taken for granted that the Legislature has wasted its breath in promulgating Section 32 (7) (a) in the presence of Section 31 (2) (b) of the Act. Such an interpretation may be contrary to all canons of justice and rules of interpretation which are accepted by the authorities as such.
34. What is the net result of the above discussion? It can be summed up in the following words:-
(a) It is the primary duty of the Registrar to conduct elections to the office of the members of the Committee before the expiry of their term under Section 31 (2) (b) of the Act to ensure the democratic governance of the society by the members of the Managing Committee.
(b) In case it is not possible to do so and circumstances existed under which the election of the members of the Committee cannot be held, the Government in respect of certain classes of societies and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society.
(c) If the above two propositions are right and indeed we do not see any reason to doubt their correctness, then the obvious conclusion to be drawn is that while elections to the members of the committee are the general rule, in exceptional circumstances the society is to be managed by a person or persons appointed under Section 32 (7) (a) of the Act.
35. Now, let us shift a bit further from the above concept and embark upon some of the minute details of the dispute or the lis arising in this cases. A lot of argument has been advanced by almost every counsel appearing on behalf of each petitioner that they have achieved excellent results in terms of production, management reputation and their contribution to the national wealth under the supervision and control of the Management Committees. In our opinion there is no reason to doubt the authenticity of the above argument and it may be taken for-granted that most of the societies, with the exception of a few here and there, have been discharging their duties to the satisfaction of one and all. But, it would not be physicially possible for this court to go into the individual cases of thousands of such Co-operative Societies and to determine as to whether a particular co-operative society has been discharging its functions satisfactorily and efficiently or not. We are of the opinion that the Co-operative Societies which are petitioners before us and may be Co-operative Societies which have not come to the court, are, by and large, functioning in a manner which can be said to be commandable. The real question to be considered here is one of the power to issue the Ordinance and secondly whether it is within the Legislative Competency of the authority issuing the ordinance to curtail the term of office of such Committees and to promulgate the holding of elections to such Committees within a stipulated period of time. We may also make it clear that the issue before us is not one of supercession of the Committee under Section 34 of the Act which provides that if in the opinion of the Registrar the Committee is not functioning properly of wilfully disobeys or wilfully fails to comply with any lawful order or direction, the Registrar after giving due notice to the Society concerned, may supersede such committee. A fortiori therefore this is not a case of malfunctioning of the Committees on the basis of which they are sought to be superseded but this is a case of appointment of a person or persons under Section 32 (7) (a) of the Act, consequent upon the term of the office of the Managing Committee having come to an end.
36. The next submission made by the learned counsel for the petitioners in a concerted fashion is that even if a person-in-charge is to be appointed under Section 32 (7) (a) of the Act, the erstwhile Managing Committee or the members of such Managing Committee of which has ceased to exist consequent upon the expiry of its term, shall invariably be appointed by the authorities concerned. The obvious implication of this submission is that no official may be appointed as a person-in-charge who will be unable to discharge his functions effectively but that the elected Managing Committee alone should be entitled to continue in office till the holding of elections in future. It is not difficult to understand the underlying force in this argument that an elected body is always more suitable for running the affairs of the Co-operative Society as against an official person-in-charge. All the counsel have squarely relied upon the Bench decision of this court reported in M. Ranga Reddy v. State (1 supra) to substantiate the above said argument. Reliance has also been placed on yet another Division Bench decision of this court reported in State of A.P. v. Multicoops' Association , 1987 (1) A.L.T. 197 to press the point here that there is no earthly reason as to why a petty official who will have no experience of running a Cooperative Society, should be put in discharge of the society replacing an elected body merely on the ground that it has ceased to exist by afflux of its term of office. We would like to minutely examine the above said proposition in the light of the relevant case law to arrivel a just and fair conclusion on the above said aspect of the problem.
37. It has been argued by all the counsel on behalf of the petitioners that even if it is necessary to appoint a person-in-charge under Section 32 (7) (a) of the Act, the same Committee can be appointed which has been functioning earlier on the basis of having been elected for a term of three years. In some cases if it is not possible to allow the entire Committee to continue as a person-in-charge, at least a few members of the Managing Committee may be appointed as a person or person-in-charge under Section 32 (7) (a) of the Act. However, under no circumstances, learned counsel submit, an official who does not have any practical experience of running a Co-operative Society can be appointed as a person-in-charge under Section 32 (7) (a) of the Act. In order to appreciate the contentions raised by the counsel for the petitioners it is necessary to examine three decisions of this court which have been relied upon by all the counsel appearing on behalf of the petitioners to substantiate their argument that there is no warrant for the appointment of an official as a person-in-charge and only the Committee should be appointed as a person or person-in-charge under Section 32 (7) (a) of the Act
38. It is proposed to examine in detail first the Full Bench decision in this connection which has been relied upon by a subsequent Division Bench of this Court reported in M. Ranga Reddy v. State (1 supra). In M. Gidda Reddy v. Deputy Registrar, Kurnool , : AIR1977AP274 (F.B.) a Full Bench of this court considered the provisions of Section 31 (2) (b) and Section 23 of the A.P. Co-operative Societies Act. Section 31 (2) (b) of the Act, which has now been repealed and which came up for consideration before the Full Bench in the above cited decision, was in the following terms:
Section 31 (2) (b)'Notwithstanding anything in Clause (a) if for any reason the election of the members of the Committee is not held by the time of the expiration of the term of the existing Committee, the Registrar may, for reasons to be recorded in writing, direct that the term of office of that Committee shall extend upto such time as such election is held, which extension shall not ordinarily exceed one year.'
The Full Bench was, therefore, concerned with the case as to whether the Registrar is bound to extend the term of the Managing Committee in every case in which election could not be held. A reading of Section 31 (2) (b) of the Act clearly reveals the fact that it provided that if for any reason the election of the members of the Committee is not held by the time of the expiration of the term of the existing committee, the Registrar may, for reasons to be recorded in writing, direct that the term of office of that committee shall extend upto such time till such election is held which extension shall not ordinarily exceed one year. This section, as stated earlier, has now been repealed and it does not find a place in the statute. The ratio decidendi of the Decision of the Full Bench is contained in paragraph 21 of the said judgment, which may usefully be reproduced hereunder:
'As we have pointed out earlier, the effect of the G.Os. exempting the societies from the provisions of Sections 31 (2) (b), 32 (7) (a) and 34 (1) of the Act in so far as they relate to the aggregate period was only to remove the limitations imposed by these sections in regard to the period by which the term of the Managing Committee was to be extended or the term during which the person-in-charge or the Special Officer was to function. They did not affect the main part of these Sub-sections which continued to apply to all the societies. Under Section 31 (2) (b) if the elections were not held, the Registrar may, for reasons to be recorded in writing, direct the term of office of that Committee should be extended. The Registrar has, therefore, the discretion whether to extend the term of the Committee or not. That discretion was not, in any way, affected by the G.Os exempting the societies from Section 31 (2) (a) relating to the period of extension. If he chose to extend the term, he had to record the reasons therefore in writing. If he did not choose to do so, there was no necessity for him to record his reasons in writing. In exercising his discretion he cannot act arbitrarily or capriciously. The discretion has to be exercised for the purposes of the Act in good faith on relevant grounds. We are, however, not prepared to accede to. the contention that he was bound to extend the term of the Committee in every case in which election could not be held.'
The main point decided by the Full Bench, therefore, was that the discretion vested in Registrar has to be exercised for the purposes of the Act in good faith and the contention that he was bound to extend the term of the Committee in every case under Section 31 (2) (b) was rejected as not maintainable at law. It is also worthy of consideration that reasons were to be recorded in writing if the term of the committee was to be extended and no such reasons were to be recorded if the term of the committee was not to be extended. Therefore, it is clear that the usual rule was not to extend the term of the committee and in doing so there was no obligation on the part of the Registrar to record the reasons. However, if the term of the Managing Committee was to be extended, then the Registrar was under an obligation to record the reasons for extending the term of the Committee. It may be mentioned here that the decision of the Full Bench is in no way concerned with the question of appointment of a person or persons under Section 32 (7) (a) of the Act. It is no where mentioned in the decision that if the term of the committee has not been extended by the Registrar and if action is to be taken under Section 32 (7) (a) for appointment of a person or persons for the management of the society, then the Committee, whose term has not been extended under Section 32 (1) (b), cannot be appointed. In our opinion this point of distinction in the full bench decision is of primary importance for the case on hand. It may be seen that under Section 32 (7)(a) of the Act a person or persons is/are to be appointed only if there is no committee or in the opinion of the Government or the Registrar it is not possible to call a general meeting for the purpose of conducting elections of members of the committee. In that situation the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manager the affairs of the Society. If the term of the committee was to be extended by the Registrar under Section 32(1) (b) of the Act after recording reasons thereof, then there is no question of Section 32 (7) (a) coming into play. Section 32 (7) (a) comes into play only 'if there is no committee.' In case the term of the Managing Committee was extended under Section 32 (1) (b), then there was no question of appointment of a person or persons under Section 32 (7) (a) of the Act. Therefore, the further question as to whether only the committee whose term of office has expired shall be appointed as a person under Section 32 (7) (a) is no where to be found in the decision of the Full Bench. It would be in the fitness of things to take up in the chronological order the decision of the Division Bench of this court reported in State of A .P. v. Multicoops' Association (9 supra) which has also been unanimously relied upon by all the counsel appearing on behalf of the petitioners. In that case the provisions of Section 123 of the Act were considered by the Division Bench. It would be appropriate to reproduce Section 123 of the Act which is in the following terms:
Section 123 Power to exempt class of societies:-'The Government may, by general or special order and for reasons to be recorded therein, exempt any society or any class of societies from any of the provisions of this Act.'
The whole tenor of discussion in the above cited Division Bench case is on the ambit and scops of Section 123 of the Act. The ratio decidendi of this judgment is that Section 123 is to meet extraordinary situation and is not to be resorted to in a casual way or with any ulterior motives. The Division Bench further went on to observe that it should be used sparingly and under exceptional circumstances and not for such purpose like avoiding elections for indefinite periods as is indicative in the Government Order dated 4-7-1985, impugned in that case. It is no doubt true that the Division Bench also observed about the sanctity and advisability to hold elections to the Managing Committee in this decision and to that extent relied upon the Full Bench case to emphasize the point that normally a Co-operative Society can be run efficiently under the supervision and control of a Managing Committee. However, we are constrained to observe that the above said decision of the Division Bench is limited to the consideration of the of the ambit and scope of Section 123, viz., the power of the Government to exempt Co-operative Societies from the operation of such provisions of the Act which may result in the postponment of elections for an indefinite period.
39. The third decision, which is to the considered carefully in this matter and which has been relied upon very strongly by all the counsel, is the decision of the Division Bench reported in M. Ranga Reddy v. State (1 supra) It is on the basis of this decision that arguments have been advanced for the continuation of the Managing Committee as a person or persons under Section 32(7)(a) of the Act. It may be made clear at the out set that it is not a question of the ex tension of the term of the Managing Committee whose term of office has expired under Section 32(1)(b) of the Act which arises for consideration as Section 32 (1)(b) was already repealed by the time the Division Bench decided the above matter but the point emerging from a reading of the above said decision is that it is the Managing Committee alone which should be appointed under Section 32(7)(a) of the Act The main portion of the judgment which is relevant for the purpose of these writ petitions is contained in paragraph 13, which may, even at the risk of a certain length, be reproduced hereunder:
'The learned Advocate-General conceded that the spirit and scheme of the Act requires elections to be held before the term of the incumbent committee expires. He agreed that appointing the official persons-in- charge and keeping them in office for long periods as a general rule is equally contrary to the spirit and scheme of the Act. We are saying this because on earlier occasions the Government and its advocates have been arguing which argument has sometimes found acceptance with one or the other Judges of this court that once the term of an elected Committee is over, it has no right to continue in office, and that it is perfectly legitimate for the Registrar to appoint such persons as he thinks appropriate as persons-in-charge. Such an argument, we must say, adopts a wholly untenable and unjustifiable approach. The angle from which the matter should be approached is not whether the elected committee has a right to continue in office beyond its term. The proper approach is whether it is permissible for the Government not to hold . elections and appoint persons-in-charge for long periods. We are told that because the officials of the Co-operative Department were not sufficient, the officials of other Departments were also indented for to act as persons-in-charge of thousands of co-operative societies. Such postponement of elections is itself contrary to the scheme of the Act. The appointment of persons-in-charge provided by Section 32(7) was conceived to meet a limited situation; it was never intended as a substitute for elected committees. Further, whenever elections are postponed for unavoidable reasons, the elected Committee should be continued in office (if necessary, by recording reasons therefor) provided the committee is not guilty of any irregularities or other malpractices. Only where the committee is guilty of irregularities and or malpractices would it be not in the interest of the society to continue such committee. The interest of the society demands that an elected committee should manage its affairs rather than a pusne officer of the Co-operative Department nominated by the Registrar. The basic idea underlying a co-operative society is that the members should themselves manage their own affairs and improve their economic lot in such manner as they think appropriate subject, of course, to the relevant laws. An official person-in-charge is the last person to be contemplated for achieving the said purpose. We hope and trust that the Government shall not hereafter contend that once the term is over, the elected committee, even if it is not guilty of any irregularities and/or malpractices, has no right to continue in office and that they can appoint any one they like as person in charge. Indeed, this is the principle affirmed by a Full Bench of this court in M. Gidda Reddy v. Deputy Registrar, Kurnool : AIR1977AP274 (F.B)'.
The learned Advocate-General appearing on behalf of the State has contended vigorously that this judgment is based upon a faulty appreciation of the ratio decendi of the Full Bench decision. It is argued by the learned Advocate-General that the Division Bench had drawn sustenence from the Full Bench decision on a point which is non-existent in the Full Bench decision. The decision of the Division Bench is that the angle from which the matter should be approached is not whether an elected committee has a right to continue in office beyond its term. The proper approach is whether it is permissible for the Government not to hold elections and appoint persons-in-charge for long periods. The Division Bench has gone on to express further that whenever elections are postponed for unavoidable reasons the elected committee should be continued in office (if necessary, by recording reasons therefor) provided the committee is not guilty of any irregularities or other malpractices. Only where the committee is guilty of irregularities and/or malpractices would it be not in the interest of the society to continue such committee. The Division Bench also held the view that the basic idea underlying a Co-operative Society is that the members should themselves manage their own affairs and improve their economic lot in such manner as they think appropriate subject, of course, to the relevant laws, and expressed the hope that in future the Government shall not contend that once the term is over the elected Committee has no right to continue in office and that they can appoint any one they like as a person-in-charge. The Division Beach relied upon the Full Bench decision reported in M. Gidda Reddy v. Deputy Registrar, Kurnool (10 supra) while expressing the above said judicial opinion. Learned Advocate-General has also stressed the point that this judgment has been delivered in the back ground of the repealed Section 31 (2)(b) of the Act under which a provision was made to extend the term of the Committee by recording reasons. This is manifest from the words used in brackets, viz., if necessary by recording reasons thereof, whereas Section 31(2)(b) has now been repealed as per Act No. 21 of 1985. We have given our earnest consideration to this matter and come to the conclusion that the guide lines, laid down in the Full Bench decision with regard to the management of the affairs of the Co-operative Societies, viz., the purposes of the Act, bona fides and relevant grounds are the common conclusions arrived at by the Full Bench as well as the Division Bench in M. Gidda Reddy v. Deputy Registrar, Kurnool (10 supra) and M. Ranga Reddy v. State (1 supra) respectively. We have already pointed out that the decision of the Full Bench was primarily and basically concerned with the question of extension of the term of the Committee under Section 31 (2)(b) of the Act and no where it has been discussed that it is the Managing Committee alone which should be appointed as a person or persons-in- charge under Section 32(7)(a) of the Act. It is quite true that a Cooperative Society can best be run by the democratic processes which are in built in the provisions of the Statute. But, at the same time it cannot be said that the affairs of the society are to be run in a manner which is not warranted by the terms of the statute. There is a consensus of judicial opinion in the Full Bench case and the Division Bench case, referred to supra. The Co-operative Societies are to be managed and controlled by the relevant provisions of the Act and unless there is something in the relevant sections of the Act indicating that only the displaced Managing Committee alone should be appointed unless it is guilty of malpractice or irregularities it would be difficult to introduce this concept in the appointment of person or persons under Section 32(7)(a) of the Act. It may also be mentioned here that the Full Bench went to the extent of saying that even in cases of extension of the term of the Managing Committees under Section 31 (2)(b) the discretion of the Registrar alone is the guiding factor and there cannot be any compulsion on the part of the Registrar to extend the term of a particular Committee. In other words, the discretion vested in the Registrar has to be exercised in good faith and on relevant grounds. The Full Bench further held that statutory discretion vested in the Registrar, therefore, was not liable to be interfered with and shall be exercised by the Registrar alone.
40. The real issue arising for consideration in this case is, whether the Managing Committees whose term of office has come to an end by virtue of Clause (4) of the Ordinance alone can be appointed as a person-in-charge under Section 32(7)(a). The main thrust of the argument advanced on behalf of the petitioners is that such of the Managing Committees which have acquitted themsleves creditably and are not guilty of any irregularities or malpractices shall necessarily be appointed as a person or persons under Section 32(7)(a) of the Act. Apart from that, an attempt has been made to argue mat the present action of cutting down the term of office of the Committee is contrary to democratic norms and practice to be followed for the running of the Co-operative Societies. The idea behind such an argument is that the elected bodies are being done away with and there is no guarantee or assurance as to when elections would be held to the said bodies. Some counsel have argued that the record of the State Government in matters of holding elections to the Managing Committee in the past has been a dismal one. For years together no action has been taken by the authorities to conduct elections and the Co-operative Societies have been brought under the thumb of bureacrats to keep them in check and to make them toe the line of the administration. We may point out here that in so far as the question of the democratic norms being given a go-by in concerned, it is rather difficult to visualise how it can be said that the elections are being by passed by cutting down the term of the Managing Committee from five years to three years. It is a matter of record that if the term of office of the Committee is five years, then the time taken by them to get ready for the next elections will be only on the expiry of the term of five years. However, the Ordinance in this case has now reduced the tern to three years which means that the elections which would have been held about two years hence will now have to be held in accordance with the terms of the Ordinance consequent upon the expiry of the term of the office of the Committee. So from that point of view, it seems that the elections are brought nearer rather than being pushed away from cutting down the term to three years. Of course, we will have to consider whether the Government is likely to honour its commitment for the holding of the elections as promulgated in the Ordinance or not. We are not inclined to agree with the submissions made by the learned counsel for the petitioners that the term of office of the Managing Committees cannot be cut down by the Ordinance from five years to three years. It is a settled principle of law that an Ordinance ranks on par with a Legislative enactment and an Ordinance is in other words issued in the exercise of the Legislative power vested in the President or the Governor, as the case may be. What the Legislature can do can be done through the Ordinance also. The pre-conditions for the exercise of the power to promulgate the Ordinance will have to be satisfied as discussed earlier and once it is found that those conditions existed, then an Ordinance will have the same position as a legislative enactment. More over, if the term of the Committee could be enhanced from two years to three years as it was done in the past and then fixed statutorily as it was done under Section 31(2)(a), then it cannot be said that the term which has been reduced or increased, as the case may be, from three years to five years, cannot be further reduced again to three years. When the Legislature has got the power to increase the term from three years to five years, it can also reduce the term from five years to three years depending upon the exigencies of the situation. This court will not like to substitute its own opinion to that of the Legislature in reducing the term from five years to three years for the Managing Committees.
41. Before embarking upon a discussion on the question whether it is obligatory on the part of the Government or the Registrar, as the case may be, to appoint only the Managing Committees as person or persons under Section 32(7)(a), it would be pertinent to refer to the main Provisions of the Ordinance having a bearing on the issue. Under Clause (3) of the Ordinance it is provided that a new Section 32-A shall be inserted after Section 32 of the principal Act, which reads as follows: -
'32-A. Notwithstanding anything in this Act, no court shall,-
(i) direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office; or
(ii) entertain any proceeding challenging the appointment of a person-in-charge by the Government or as the case may be, the Registrar.'
It has already been pointed out that the first objection raised by the learned counsel for the petitioners to the insertion of such a section is a numerical error committed by the authorities in providing for Section 32-A to be inserted after Section 32. It has been pointed out that there is already a Section '32-A' in the Act and, therefore, in the presence of such a section, another Section of the same number, i.e, 32-A, cannot be inserted. This however, is a minor numerical error which may not affect the substantive aspect of the case and we are of the opinion that in case such a provision is to be introduced in the Act it shall be given a correct number.
42. Under Clause 3 of the Ordinance, it is provided that a new Section '32-A' shall be inserted after Section 32 of the principal Act. Under Clause (i) of the proposed Section 32-A it is provided that no court shall direct the appointment or continuance of a committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office. The language in which the said section is couched shows that it may not have a binding effect on the High Court which under Article 226 of the Constitution is empowered to issue writs or give directions. With regard to the matters falling within its extraordinary jurisdiction the term 'no court' employed in the said clause of the Ordinance cannot be interpretted to mean the High Court. It may be a different thing if the term is applicable to other ordinary courts of civil jurisdiction. We are convinced that the provisions of Section 32-A(i), introduced under Clause 3 of the Ordinance, cannot in any way impair or effect the jurisdiction of the Supreme Court under Article 32 or the High Court under Article 226 of the Constitution. The jurisdiction of the High Court is sacrosant and cannot be affected by the provisions of an Ordinance which has been promulgated by a State Government. The power conferred on the High Court under Article 226 of the Constitution does not empower the State Legislature to pass any Act which goes contrary to the provisions of Article 226 of the Constitution. Unless there is an amendment to Article 226 of the Constitution, the jurisdiction of the High Court remains in tact and, therefore, the provision in the Ordinance about 'no court' being in a position to direct the continuance of a committee which ceases to hold office as person-in-charge merely on the ground that such committee had earlier held office, cannot bind the High Court It cannot restrict the power of the High Court to give such direction in case it deemed fit and proper to do so for the continuance of any such committee. Indeed, in paragraph 7 of the common counter-affidavit filed by the respondents it is stated as follows:-
'......If is not the intention of the Legislature to curtail the power of the court under Article 226 of the Constitution of India. What is attempted to be done by the Ordinance is to make it clear that the elected office bearers cannot continue as a matter of course. Otherwise the prescription of elective term becomes meaningless and exercise of appointing persons-in-charge becomes equally meaningless. So it is submitted that inasmuch as the Legislature has manifested a clear intention by enacting Section 32-A(i) there is no point in adverting to the earlier decisions directing that the elected members should be continued if there are no serious allegations against them. This legislative mandate cannot be said to be in excess of its legislative power. The content of the Ordinance is not to circumscribe the power of the High Court under Article 226 of the Constitution of India or of the Supreme Court under Article 32 of the Constitution. For the above reasons it is also further submitted that there is no arbitrary termination of the term of any elected Committee. Such contention stems out of the misunderstanding of Clause 4(1) of the Ordinance.'
A reading of this paragraph in the counter would have revealed the fact that it is not the intention of Clause 3 of the Ordinance to curtail the power of the court under Article 226 of the Constitution. It is clearly mentioned there that the content of the Ordinance is not to circumscribe the power of the High Court under Article 226 of the Constitution of India or of the Supreme Court under Article 32 of the Constitution of India. However we are dilating upon this point in view of the argument advanced by the learned Advocate-General that Section 32- A(i) will bind the High Court as well. In other words, what the learned Advocate-General has submitted is that the term 'no court' shall include the High Court also. We have no hesitation in rejecting this argument not only in the light of the averments made in Para 7 of the common counter but on the ground that the State Legislature has no competence to circumscribe or limit the jurisdiction of the High Court under Article 226 of the Constitution. Nothing contained in the Ordinance can limit the jurisdiction of the High Court vested in it under Article 226 of the Constitution unless that article itself is amended by the required constitutional procedure. The State Legislature is not competent to enact any law which runs contrary to the provisions of the Constitution. Therefore, we are constrained to observe that the submission that the proposed Section 32-A(i) binds the High Court is bound to be rejected out of nano. Learned Advocate-General has nevertheless argued that in so far as Clause 3(ii) of the Ordinance is concerned, the High Court shall not be bound by the provisions of the said section. This, in effect; means that the learned Advocate-General concedes that in so far as the question of entertaining any proceeding is concerned challenging the appointment of a person-in-charge by the Government or, as the case may be, the Registrar, the jurisdiction of the High Court can be invoked for a proper decision in the matter. We take note of the submission made by the learned Advocate General in this regard but we would like to make it clear that even otherwise had the argument been to the contrary, we would have rejected the same as we have done in the case of the proposed Section 32-A(i) of the Ordinance. With this jurisdictionl back ground it would be pertinent to analyse the provisions of Clause 3 of the Ordinance. It states that no court shall direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such committee had earlier held office. The words 'merely on the ground that such Committee had earlier held office' are worthy of consideration. A proper interpretation of the said words would be that no court can direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge only on the ground that the Committee had earlier held office. But, if a Committee, which had earlier held office, had discharged its obligations under the statute creditably and has otherwise been contributing its mite for the progress and welfare of the Co-operative Society and if the court feels that in a given set of circumstances such a Committee can be the proper person to be entrusted with the management of the affairs of the Society, then there is no bar of jurisdiction for any court to give a direction to that effect, because what is sought to be prohibited is the appointment or continuance of the Committee merely on the ground that such Committee had earlier held office which means that if a Committee has earlier held office ipso facto no direction can be given for the continuance of such a Committee. But the courts on which the proposed Section 32-A(i) is supposed to be binding will have to consider whether there are other grounds apart from the fact that such Committee had earlier held office on the basis of which it can be directed that such a Committee should be appointed as a person-in-charge. It would be necessary to interpret the proposed section in a restricted fashion to preserve the jurisdiction of the courts and it will have to be read in consonance and in harmony with the accepted norms of jurisdiction exercised by such courts. It is to be noticed that under Section 32(7)(a) of the Act there is no bar for the appointment of a Managing Committee, which had held office earlier, as a person or persons to manage the affairs of the society. All that the said section says is that if there is no Committee or in the opinion of the Government or the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the Committee, the Government, in respect of such class of societies as may be, prescribed, and the Registrar in all other cases, may appoint a person or persons to manage the affairs of the Society for a period not exceeding six months. The discretion is vested in the Government in regard to prescribed societies and the Registrar in all other cases to appoint a person or persons to manage the affairs of the society. This is a statutory discretion vested in the Government or the Registrar, as the case may be, and if the Registrar in the exercise of his statutory discretion comes to the conclusion that it would be in the interests of the society to appoint the Managing Committee itself which had earlier held office, as a person-in- charge, then there is nothing which prevents him from doing so. Now by providing that no court shall direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office, the Ordinanace does not prohibit the Registrar or the Government from appointing the erstwhile Managing Committee as a person in- charge because the bar under Section 32-A(i) operates only against the court which cannot direct the continuance of appointment of such a Managing Committee as a person-in-charge under Section 32(7)(a). In other words, Caluse 3 of the Ordinance does not create a bar or prohibition on the Government or the Registrar from appointing such deserving Managing Committees which had discharged their functions creditably. In the light of the Full Bench decision in M. Gidda Reddy v. Deputy Registrar, Kurnool (10 supra) also it has been observed that the statutory discretion vested in the registrar is reviewable and has to be exercised to subserve the pruposes of the Act. We, therefore, hold that it is the duty of the Registrar while exercising his statutory discretion to appoint a person or persons under Section 32(7)(a) to examine the case of each and every society individually to determine whether it would be fit and proper to continue the Managing Committee which had held office earlier and if the Registrar comes to the conclusions that that body alone can discharge the functions to the satisfaction of one and all and promote the interests of the Co-operative Society, there shall be no bar against the appointment of such Managing Committee under Section 32(7)(a) of the Act. There cannot be any hard and fast rule with regard to the matter of appointment of a person or parsons to manage the affairs of the society The over-all object of appointment of such a person or persons is to ensure the smooth functioning of the Co-operative Society and whosoever is found fit and proper to be appointed, the Registrar may appoint him as a person under Section 32(7)(a). It is needless to mention that while arriving at a decision in this regard the Registrar must apply a fair and objective mind to the facts of each and every case of the Society and come to a conclusion of his own.
43. Sub-clause (1) of Clause 4 of the Ordinance provides that every Committee constituted before the commencement of the A.P. Co-operative Societies (Amendment) Ordinance, 1990 and has completed three years of term of office on or before such commencement shall cease to hold office on such commencement and every such Committee which completes three years of term of office after such commencement shall cease to hold office on such completion. The object of this clause is to cut down the period of office of the Committee to three years. It applies uniformly to all such committees whose three years term of office is to come to an end after the promulgation of the Ordinance. Since the rule is applied to all the Committees without any discrimination or exception, it cannot be said that Clause 4(1) of the Ordinance infringes the provisions of Article 14 of the Constitution. If the case was that only some Committees were to have a three year term and others were to continue beyond the term of three years, then, perhaps, a charge of discrimination could have been laid against Clause 4(1) of the Ordinance but the period has been cut down with regard to all societies and, therefore, we are not inclined to hold that Clause 4(1) of the Ordinance suffer from any unconstitutionality or illegality, as the case may be.
44. Similarly, Sub-clause (2) of Clause 4 of the Ordinance provides that notwithstanding anything in Clause (b) of Sub-section (2) of Section 31 of the principal Act, elections to such societies whose committees cease to hold office shall be held by the Registrar within a period of six months from the date of commencement of the said Ordinance, in accordance with the provisions of the principal Act and the rules made thereunder provides that the Government may, by order and for reasons to be records in writing, extend from time to time, the period of six months aforesaid; so however the total period shall not exceed one year from the date of commencement of the said Ordinance. It may be mentioned here that under Clause (b) of Sub-section (2) of Section 31 of the principal Act, it is provided that it shall be the duty of the Registrar to hold elections to the office of the members of the Committee before the expiry of their term. Since the term of the Committees under the impugned Ordinance would have expired either before or after the commencement of the Ordinance, it is provided that notwithstanding anything in Clause (b) of Sub-section (2) of Section 31, elections to such societies whose Committees cease to hold office consequent upon their finishing the term of three years shall be held by the Registrar within a period of six months from the date of commencement of the said Ordinance in accordance with the provisions of the principal Act and the rules made thereunder. In the common counter affidavit filed on behalf of the respondents it is stated that the intention of the Government is not at all to postpone the elections and to appoint persons-in-charge as a general policy. Government in G.O.Ms. No. 250, Food and Agriculture (Coop.IV) Department, dated 6-4-1990, have ordered conduct of elections to the various categories of Societies specified therein. Further more, it is stated that elections to the re-organised primary Agricultural Credit Societies, numbering about 4,500 were conducted in the year 1987 and at that time the term was three years. It is further stated that the total membership of the credit societies was about 75 lakhs, which has not increased to 110 lakhs and that the Government received complaints that a large number of ineligible persons who are alleged not to be residing in the area of operations and not qualified as per bye-Jaws were admitted enabling them to take part in the elections. Several writ petitions were filed challenging the admission of the members. After the elections were completed, when it was brought to the notice of the Registrar that ineligible persons were admitted, the Registrar issues instructions to the Societies and officers to remove such persons. The Government has decided to ensure removal of such persons before conducting elections. It may be stated here that under Rule 22 of the Rules the time required for conducting elections to all societies is two months and obviously some more time may be required for elimination of ineligible persons, if there are any, in the society. More over there has been a serious cyclone causing great havoc and dessertion in certain parts of the State. Taking into consideration all these factors, it is provided in the Ordinance that elections shall be conducted within six months which appears to be a reasonable time for holding elections to the various Co-operative Societies. It is also to be noted that under no circumstances the extension of time shall go beyond the period of one year from the date of commencement of the said Ordinance. We are satisfied that the time provided for holding elections to the various Co-operative Societies appears to be reasonable and that elections shall be completed between the period of six months and one year from the date of the Ordinance. The Government will be duty-bound to carry out the provisions of the Ordinance in this regard and shall not try to delay the elections any further thereby inviting a charge of dodging the elections on some pretext or other.
45. Therefore, the person or persons to be appointed under Section 32(7)(a) of the Act will have to function only during the intervening period between the date of promulgation of the Ordinance and the holding of elections and under no circumstances their term of office would be extended beyond the stipulated time for elections.
46. Another aspect of the problem which has been stressed upon by several learned counsel appearing for the petitioners in this batch of writ petitions is the absence of the Chief Minister from India during the promulgation of the Ordinance by the Governor. The substantive aspect of this submission seems to be that the Governor can promulgate an Ordinance only on the advice of Council of Ministers. The subject satisfaction of the Governor is, therefore, to be formed in the light of the advice given to him by the council of Ministers and when the Chief Minister himself was absent during the crucial time, it cannot be said that the Governor was properly advised by the Council of Ministers to promulgate the Ordinance. It is quite true that an Ordinance can be promulgated by the Governor only on the advice of the Council of Ministers but the fact remains that the mere absence of the Chief Minister cannot tantamount to non-functioning of the Council of Ministers. In the modern days of advanced telecommunications, it is not a difficult thing to keep in touch with the people in any part of the globe and even if the Chief Minister was in United States of America for medical treatment, he was definitely in a position to keep in touch with the Council of Ministers. More over, a perusal of the record in this matter clearly shows that Rule 21 of the Business Rules has been fully complied with and it was only on the advice of the Council of Ministers that the Governor took the action of promulgating the Ordinance. Apart from a general allegation that Rule 21 of the Business Rules has not been complied with, no counsel appearing on behalf of the petitioners has been in a position to show that such advice was not tendered to the Governor. It may not be out of place to mention a few facts emerging from a perusal of the record produced by the learned Advocate-General in this batch of Writ Petitions. In order to appreciate the point raised by the counsel for the petitioners that there has been no consultation between the Council of Ministers and the Chief Minister in all its manifestations, we have examined the relevant records carefully to see whether there is any substance in these contentions.
47. A brief account of what transpired from a reading of the file is as given below: The proposal for prescribing a term of three years for the Managing Committees was discussed on 11-6-1990 between the Secretary, Food and Agriculture and the Secretary, Law, in the presence of the Additional Registrar, Law Officer and some others. Certain alterations were discussed at the meeting for reducing the term of the Managing Commitees from five years to three years. The file also reveals the fact that ultimately a decision was taken to reduce the term of office of all the Committees uniformly to three years irrespective of the fact whether they were elected prior to 21-9-1989 on which Act No. 16/89 came into force or thereafter. A proposal was made in a concrete form to amend the A.P. Co-operative Societies Act to prescribe the term of three years instead of five years as provided for in Section 31 (2)(a) of the A.P. Co-operative Societies Act Thereafter, some discussions ensued between the Minister for Co-operation and the Law Department which need not be gone into here in detail. A draft memorandum was prepared for the Council of Ministers and it was circulated directly to all the Ministers as it was felt mat the approval of the Chief Minister to the Memorandum may not be necessary in view of his specific orders passed earlier. It seems, the Chief Minister has agreed to the procedure prescribed in Rule 16(1) of the Business Rules whereby the procedure of placing the matter before the Council of Ministers both for approval of the proposal for legislation and approval of the draft legislation after it is prepared by the Law Department was dispensed with and the short circuit procedure of circulation was adopted for both purposes. Therefore, the procedure under Rule 17 of the Business rules was followed and the Ministers were to be given a time within which to communicate their views, if any, after the expiry of which it was to be presumed that they have approved the proposal. Thereafter, as provided in Rule 44 the matter was to be brought before the Council of Ministers again for circulation after approval of the draft legislation by the Minister for Co-operation. We find a note by the Chief Secretary in the record dated 24-6-1990 wherein it is stated that the Chief Minister has sent a FAX from United States of America. He has directed that the short circuit procedure prescribed under Rule 16(1) of the Secretariat Business Rules which provides dispensing with the procedure of placing this matter before the Council of Ministers and adopting the procedure of circulation be followed. The Chief Secretary has stated that if the proposal is approved by the Council of Ministers in accordance with the procedure, the Chief Minister has also indicated that the draft Ordinance may be circulated again to the Council of Ministers following the same procedure and fixing the dated '27-6-1990' at 4-00 P.M. for communication of views, if any, by the Ministers. The FAX message date 24-6-1990 from the Chief Minister of Andhra Pradesh, Camp: New York, reads as follows:
'Procedure relating to the Ordinance is approved. At the stage of sending the file to the Governor, my following endorsement may be separately taken out and pasted on the file:
'The Ordinance may kindly be approved by the Governor'.
Sd/-
C.M'
In pursuance of the said FAX message a communication was prepared in the name of the Chief Minister to the Governor. Thereafter, the record reveals the fact that the Memorandum for the Council of Ministers was prepared and all other steps were taken and the approval of the Chief Minister was obtained on FAX as indicated by a note dated 28-6-1990. All this clearly shows that there is no substance in the argument that there was no discussion between the Council of Ministers and the relevant Business Rules were not followed. More over, the Governor was fully advised by the Council of Ministers to exercise his subjective satisfaction for the promulgation of Ordinance No. 5 of 1990. We have gone some what into the details of the record available in this regard so that there may not be any manner of doubt about the procedure which has been followed before promulgation of Ordinances by- the State Government.
48. The next aspect of the matter which has to be considered is that in pursuance of the Ordinance several G.Os. have been issued appointing persons-in-charge to the various Co-operative Societies. In G.O.Ms. No. 418 dated 30-6-1990 it is provided that consequent on the promulgation of Ordinance No. 5 of 1990, dated June 30, 1990, reducing the term of office of the Managing Committees of the primary Agricultural Cooperative Societies, Weavers Societies etc., the Government considered that there is no time for making advance preparations for conduct of elections to those societies and taking into consideration the heavy damage and dislocation caused due to recent cyclone, it is not possible to hold elections and so the Government directed that persons-in-charge shall be appointed under Section 32(7)(a) of the Act While the Government was to issue orders in respect of Apex Societies, the Commissioner for Co-operation and the Registrar of Co-operative Societies was requested to issue necessary appointments for the District Co-operative Central Banks and other categories. In respect of other societies, the functional Registrars concerned were requested to consult their Administrative Departments in Government regarding the appointment of person-in-charge in the respective societies and take action accordingly. It is, however, clarified that the orders issued in G.O.Ms. No. 250, Food and Agriculture Department dated 6-4-1990 directing the Commissioner for Co-operation and Registrar of Co-operative Societies to conduct elections to certain specific categories of societies will not be affected. The above G.O.Ms No. 418 dated 31-6-1990 is referred to in extenso to indicate the fact that several such orders have been issued in regard to the various Cooperative Societies in the wake of the Ordinance in question. Therefore, the next question to be considered is whether these orders can be implemented in the form they have been issued or whether they are liable to be annulled or modified, as the case may be, for want of exercise of statutory discretion vested in the Registrar in the matter of appointment of persons-in-charge. There is no doubt that persons-in-charge will have to be appointed because the Committees are not in existence and the elections due to various reasons cannot be held. Under Section 32(7)(a) it is provided that persons-in-charge may be appointed by the Government in respect of such class of societies as may be prescribed and by the Registrar in all other cases to manage the affairs of the society for a period not exceeding six months. We have taken the view that the Ordinance cannot decree in positive terms that the erstwhile Managing Committees which have been functioning creditably are under no cricumstances to be appointed as persons in charge | under Section 32(7)(a). We are inclined to hold that if the Committee has acquitted itself creditably and if there is nothing to complain about the functioning of the Committee, it would be well within the discretion of the Registrar to appoint such a Committee as a person or persons-in-charge. More over, there is nothing in the Ordinance to prohibit the appointment of such Managing Committee as person or persons-in -charge and, therefore, they cannot be totally excluded from consideration for appointment as a person or persons-in-charge in deserving cases
49. Section 117 of the Co-operative Societies Act lays down the manner in which a newly elected Committee or a person-in-charge appointed under Section 32oraperson appointed under Section 34 or a liquidator appointed under Section 65 of the A.P. Co-operative Societies Act, may take charge of the management of the Society. The same provides that in the event of refusal by the persons in management to hand over charge, the newly elected or nominated Committee or the person appointed under Section 32 or a Special Officer or Managing Committee appointed under Section 34 or a liquidator appointed under Section 65 of the Act, may assume charge in a particular manner with the assistance of the police, if such person, officer, Committee or liquidator is resisted in or prevented from doing so. No such procedure is adopted in these cases. No requisition was made of the erstwhile Committees of management to hand over possession of books, accounts, documents, securities, cash and other properties of the Society. There was no occasion for them to refuse to hand over charge. In most of those cases the officials who were appointed as persons-in-charge had ostensibly assumed charge on dates prior to 3-7-1990. We find that such assumption of charge without compliance with the provisions of Section 117 of the Act or even the rules and orders applicable to Government servants, was absolutely improper and high handed.
50. In view of the force-going discussion, we are inclined to sum up our conclusions in the following manner:
We are of the opinion that the co-operative Societies are to be run strictly in accordance with the provisions of the Statute. There should be no extraneous consideration for the running of the management of the Co-operative Societies. However, for the reasons already given in this judgment earlier, we hold that the provisions of Clause 3 of the Ordinance seeking to. introduce an amendment in Section 32 of the principal Act by way of insertion of a new Section 32-A creating a bar of interference of courts in the matter of appointment or continuation of a Committee which ceases to hold office as a person-in-charge shall not be construed to affect the jurisdiction of the High Court exercised under Article 226 of the Constitution of India. Under the proposed Section 32-A the wording 'notwithstanding anything in this Act, no court shall direct......' is to be read as meaning courts which are subordinate to the High Court and not the High Court itself. We have given cogent reasons for the above interpretation and we deem it fit and proper to clarify this position because the learned Advocate General has submitted that the proposed Section 32-A creating a bar of interference by courts is supposed to be applicable to the High Court as well. We have no hesitation in holding that the operation of Clause 3 of the Ordinance shall in no way affect the jurisdiction of the High Court under Article 226 of the Constitution. Similarly, the proposed Section 32-A(ii) which provides 'notwithstanding anything in this Act, no court shall entertain any proceeding challenging the appointment of a person-in-charge by the Government or as the case may be, the Registrar' is to be construed as meaning that it applies to courts other then the High Court and in no way affects the jurisdiction of the High Court to entertain any proceeding challenging the appointment of a person-in-charge by the Government or, as the case may be, the Registrar. In all other respects and all other matters, the provisions of the Ordinance are deemed to be valid, legal and constitutional.
51. One other aspect which we wish to point out is the cavalier manner in which the Ordinance has been drafted and promulgated. Section 3 of the Ordinance incorporated Section 32-A in the Co-operative Societies Act, 1964. The draftsmen seem to be unaware of the fact that there was already Section 32-A in the statute book. However, we direct that suitable correction may be made in the Ordinance with regard to the proposed Section 32-A as there is already a section bearing the same number in the principal Act.
52. As corollary to the above stated principle of law, we are inclined to hold that the provisions of the statute laid down under Section 32(7)(a) of the Act shall be followed implicitly in this case, We have already discussed and pointed out that under the said Section 32(7)(a) the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases may appoint a person or persons to manage the affairs of the society for a period not exceeding six months. We, therefore, direct that the Government in respect of such class of societies as may be prescribed and the Registrar in all other cases shall appoint person or persons to manage the affairs of the society as provided in the said section. However, it is made clear that in doing so the Government or the Registrar, as the case may be, shall keep in mind the fact that the question of appointment of Managing Committees which were holding office immediately before the promulgation of the Ordinance or such Managing Committees which may in future cease to hold office as a result of the completion of three years term, may, if their performance has been upto the mark and if there is nothing disparaging against their functioning during the tenure of their notice, also be considered for appointment as a person or persons-in-charge to manage the affairs of the Society. In other words, there cannot be any exclusion of the erstwhile Managing Committees of the various Cooperative Societies for consideration for appointment as a person or persons under Section 32(7)(a). The case of each Co-operative Society must be considered on its own merits and the discretion vested in the Government in regard to the other societies shall be exercised independently in making such appointments.
53. We are convinced that the statutory discretion vested in the Registrar cannot be obviated or compromised by a whole sale order of appointment of official persons-in-charge to the various Co-operative Societies. We are of the view that the overall object of the appointment of a person or persons under Section 32(7)(a) is to ensure the smooth and efficient functioning of the Co-operative Societies. For this purpose the best available person or persons including the erstwhile Managing Committee or some of its members, if they have acquitted themselves creditably in the past, or other independent person or persons who may be deemed fit and suitable for running the affairs of the Society may be considered and appointed as such.
54. In view of the above discussion, we hold that the bar under Section 3 of the Ordinance does not apply to the jurisdiction of this court under Article 226 or of the Supreme Court under Article 32 of the Constitution of India. We also hold that all such appointments which have been made under the various Government Orders issued in pursuance of Ordinance No. 5 of 1990 are set aside and the Government Orders, viz., G.O.Ms.Nos. 418, 419 and 420 dated 30-6-1990, the proceedings of the Registrar of the Co-operative Societies in R.C.No. 50493/90 Crl.(b), dated 30-6-1990 and the consequential orders passed by the subordinate officers pursuant thereto, are struck down with a direction that appropriate and prompt action may be taken within 2 weeks from today by the Government or the Registrar, as the case may be, for the appointment of a person or persons under Section 32(7) of the Act in the light of the directions given above. The time limit imposed for holding elections as per Sub-clause (2) of Clause 4 of the Ordinance shall be adhered to strictly and there should be no occasion to seek further extension of time for the holding of elections to the Co-operative Societies.
55. All the Writ Petitions are allowed to the extent indicated above. In the circumstances of the cases, there shall be no order as to costs. Government Pleader's fee Rs. 250/- in each Writ Petition.
V. Sivaraman Nair, J.
56. I have had the advantage of reading the illuminating opinion of my esteemed colleague Mohd. Sardar Ali Khan, J. and I do agree with his conclusions. However, on a few relevant aspects, I feel it appropriate to supplement and state my reasons which are slightly at variance with those stated in the leading judgment on some other aspects. My endeavour is only to further strengthen and not to dissipate the relevance of the findings in which there is happy concurrence among us. In view of the importance of the questions thrown up by this batch of Writ Petitions, I feel it necessary to refer to the relevant pleadings on the important aspects at some length in separate portions of mis concurring opinion.
57. Petitioners challenge Ordinance No. 5 of 1990, which amended some provisions of the Andhra Pradesh Co-operative Societies Act, 1964. The most important provision of the Ordinance is Section 2 which amended Section 31 (2)(a) of Act 7 of 1964, so as to reduce the term of the elected Committees of Management from five years to three years. Section 3 of the Ordinance introduced in the Principal Act, Section 32-A (there is already another Section 32-A in the Act). Clause (i) provides that no court shall direct the appointment or continuance of a Committee which ceases to hold office as person-in-charge merely on the ground that such Committee had earlier held office. Clause (ii) provides that no court shall entertain any proceeding challenging the appointment of a person-in-charge by the Government or the Registrar as the case may be.
58. Section 4 of the Ordinance enacts that Committees continuing in office beyond the term as amended shall cease to function, that every Committee constituted before the commencement of the Andhra Pradesh Co-operative Societies (Amendment) Ordinance, 1990, and has completed the term of three years on or before such commencement shall cease to hold office on such commencement and every such committee which completes three years of term of office after such commencement shall cease to hold office on such completion.
Sub-section (2) provides that-
'Notwithstanding anything in Clause (b) of Sub-section (2) of Section 31 of the Principal Act, elections to such societies whose committees cease to hold office shall be held by the Registrar within a period of six months from the date of commencement of the said Ordinance, in accordance with the provisions of the principal Act and the rules made thereunder.
Provided that the Government may, by order and for reasons to be recorded in writing, extend from time to time, the period of six months aforesaid, so however the total period shall not exceed one year from the date of commencement of the said Ordinance.'
59. Petitioners are elected committees of management of Credit, Agricultural Development, Milk Producers' and Weavers' Co-operative Societies. The Primary District and apex Co- operatives are among the petitioners. The primary Credit Societies and District and apex Banks have committees of management which were elected in 1987 for three year terms. Such term was extended as five year by Amending Act 16 of 1989. That amendment was enacted on the advice tendered by a Legislative Committee and other expert Committees, so as to achieve economy and unification of the term of office in Co-operatives as in other States and as in the case of legislatures. The impugned Ordinance seeks to reduce that term. The other provisions are really consequential on reduction of the term of office.
60. Simultaneously with the promulgation of Ordinance No. 5 of 1990, the State Government issued three orders viz., G.O.Ms. Nos. 418, 419 and 420, Food and Agriculture (Co-operation IV) Dept., dt.30-6-1990 for appointment of persons-in-charge of the management of the Co-operatives. The 1st of them contains the general instruction that persons-in-charge shall be appointed under Section 32(7)(a) of the Andhra Pradesh Co-operative Societies Act, and states that the Government will issue orders in respect of apex Societies, viz., Andhra Pradesh State Co-operative Bank and Andhra Pradesh State Co-operative Central Agricultural Development Bank Ltd., and that the Commissioner for Co-operation and Registrar of Co-operative Societies will issue necessary orders of appointment for the District Co-operative Central Banks. For the other categories, the Registrar was requested to direct Collectors/District Cooperative Officers to appoint persons-in-charge as envisaged under Section 32(7)(a). Functional Registrars were requested to consult their administrative departments in Government regarding the appointment of persons-in-charge in the respective Societies and to take action accordingly. It was clarified that the Ordinance will not affect the orders issued in G.O.Ms No. 250 dt.6-4-1990.
61. G.O.Ms. No. 419, Food and Agriculture (Co-operation IV) Department dt 30-6-90, is the order appointing the Secretary to Government, Food & Agriculture Department as Chairman, Managing Director, Andhra Pradesh State Co-operative Bank Ltd., Hyderabad, the Joint Secretary (Finance) and Addl. Registrar of Co-operative Societies as Member/Persons-in-charge of the Committee to manage the affairs of the Andhra Pradesh State Co-operative Bank Ltd., Hyderabad, with effect from 1st July, 1990 for a period of six months or till the newly elected Committee assumes charge, whichever is earlier.
62. G.O.Ms. No. 420, Food and Agriculture (Co-Op.IV) Dept., dt.30-6-1990, is the order appointing the Secretary to Government, Food and Agriculture Department as Chairman Managing Director, A.P. State Co-operative Central Agricultural Development Bank Ltd., Hyderabad, Joint Secretary (Finance) and Addl. Registrar of Co-operative Societies as Member/Persons, to manage the affairs of the Andhra Pradesh State Cooperative Central Agricultural Development Bank Ltd., Hyderabad, with effect from 1st July, 1990, for a period of six months or till the newly elected Committee assumes charge, whichever is earlier.
63. The Registrar of Co-operative Societies in turn issued proceedings Rc.No. 50493/ 90 Cr.1(b), dt.30.6.90 with reference to G.O.Ms. No. 418, Food and Agriculture (Co-Op.III) Dept., dt.30-6-90 directing appointment of the District Collector as Chairman and District Co-operative Officer, General Manager, District Co-operative Central Bank Ltd., as Members/Persons-in-charge of the Committee to manage the affairs of the District Co-operative Central Banks. He also suggested that for Primary Societies, the Persons-in-charge may be-(1) Co-operative Departmental Officers, or (2) officers of other development departments and failing either (3) supervisors of Co-operative Central Banks.
64. The Deputy Registrars of the Co-operative Societies followed up the Circular by issuing orders under Section 32(7)(a) of the Co-operative Societies Act, appointing departmental officers as persons-in-charge of various Primary Agricultural Co-operative Societies, on a part-time basis. One of such orders which the petitioner in Writ Petition No. 9182/90 has produced is that of the Deputy Registrar of Co-operative Societies, Nuzvid, R.C. No 1929/90-C, Dt.1-7-1990, appointing 18 officers of the Co-operative Department right from the Co-operative Sub-Registrars down to Junior Inspectors/ Auditors, as part-time persons-in charge of 121 Primary Agricultural Co-operative Societies. The Co-operative Sub-Registrar (non-credit) is a part-time person-in-charge of 16 Co-operative Societies. There are other instances where other officers like Cooperative Sub-Registrar (Weaker Sections) and Co-operative Sub-Registrar (Long term Credit) etc.. are appointed as part-time persons-in-charge of a large number of Cooperative Societies.
65. Petitioners challenge the Ordinance, the three orders of the State Government, the Circular and orders issued by the Registrar and the consequential orders directions issued by the subordinate officers of the Department, as unconstitutional, illegal and arbitrary. Petitioners also assert that these orders are invalid as they are vitiated by mala fides.
66. The main grounds urged against the Ordinance are-
(1) that the Ordinance is unconstitutional, since conditions necessary for exercise by the Governor of the power to promulgate an Ordinance under Article 213 of the Constitution of India were not in existence.
(2) that Section 3 of the Ordinance is beyond legislative competence.
(3) that it amounts to a mala fide exercise of power; and
(4) that it is arbitrary and therefore unconstitutional.
67. Counsel for the petitioners submit that reduction in the term of office of the Committee of management from five to three years is unreasonable, arbitrary and improper. The term was reduced only for the purpose of ousting the existing elected Committees of management, most of which were manned by persons belonging to the opposition parties and to convert the Societies virtually into government-run organisations, so that patronage can be distributed to favourites. This bureaucratisation of the Cooperatives is said to be against the purposes of the Co-operative Societies Act, the spirit and principles of Co-operative movement and altogether abhorrent to Co-operative democracy. The Ordinance is meant to rob the court of its power of judicial review and impair, its authority to entertain applications for issue of writs of mandamus and certain directions in aid thereof. The postponement of elections for six months or one year and possibly for indefinite periods later is said to be disruptive of democracy in these vital institutions of the ordinary man's life, which have to thrive on principles of thrift and self-help. The Ordinance is also assailed as an instrument of political vendetta against the elected Committees of management of most of the Societies which have a statutory term of two more years to go according to Section 31(2)(a) as amended by Act 16 of 1989.
68. Petitioners urge that the Chief Minister of the State having been away from the country from the end of May till the middle of July, 1990, the State Cabinet could not have met or tendered its advice to the Governor on the promulgation of the Ordinance, and the Governor would not have therefore been satisfied that circumstances existed which rendered it necessary for him to take immediate action so as to justify promulgation of the Ordinance. Petitioners submit that there was no such urgency in the matter as to resort to the extraordinary law-making power of the Governor, since the same amendments would well have brooked the delay upto the next session of the legislature, even assuming that there was need to reduce the term of the committees of management Yet another submission is that even while reducing the term of office, transitary provision could have been incorporated in the Ordinance to take care of the period till the next elections by continuance of the elected Committees, instead of bureaucratining the entire process in contravention of the very purposes and object of the Act. The Ordinance is also challenged as arbitrary in that it forges fetters into the discretion of the Registrar under Section 32(7)(a) of the Principal Act in the matter of appointment of persons-in-charge by insisting that only officials, and not in any case members of the elected Committees, shall be appointed. Conferment of such blanket-power on the Government and the Registrar without providing any guidelines is said to be arbitrary and violative of Article 14 of the Constitution of India,
69. The three orders of Government, the Circular and orders of the Registrar, all dated 30-6-1990 and the orders of subordinate officers appointing only officials as persons-in-charge are said to be manifestations of a deep-rooted and well throughout political design to capture control of all Co-operative institutions, initially through bureaucratisation, and thereafter by imposing persons belonging to one shade of political opinion alone among the members to be in-charge of management of the Societies. The timing of the Ordinance and the orders near about the midnight of 30-6-1990, on which date, the reduced term of three years expired, is said to indicate the indecent haste and anxiety to execute the plan to subvert democracy in the Co-operative Societies in the State. Lastly, it is submitted that the officers who were appointed as persons-in-charge imposed themselve on the Societies unceremoniously, even without lifting a lettle finger to request the outgoing committees to relinquish and handover charge. This, is stated, was done by antedating the assumption of charge by making some endorsement in some record of the Co-operative Societies, so as to defeat and circumvent, and in defiance of the interim orders of this court directing to maintain status quo as at 4.15 P.M. on 3-7-1990.
70. The Advocate-General submits that the petitioners are not entitled to any of the reliefs since-
(1) they have no locus standi,
(2) this court has no jurisdiction to review the need or the justifiability of the Ordinance,
(3) the reduction of the term of office of the elected Committee is a matter of policy in which the court will not ordinarily interfere,
(4) petitioners who were elected only for three years' term cannot claim any right to continue in office beyond that term,
(5) they have no right to claim extension of their term since there is no provision enabling such extension, and
(6) they cannot insist that they shall be appointed as persons-in-charge.
He also submitted that the only grounds on which legislation can be challenged are-
(1) competence with reference to Legislative Lists and entries.
(2) violation of fundamantal rights, including Article 14 of the Constitution of India.
(3) Non-compliance with conditions precedent as provided in the Constitution.
According to him, non-application of mind, impropriety or haste, legal mala fides etc. cannot be urged as vitiating legislations, and those very tests apply to Ordinances also. Such grounds apply only to administrative and executive actions. He submitted that since the Ordinance was within the legislative competence of the State, the only remaining questions are-
(a) Whether the Ordinance was promulgated without complying with the conditions under Article 213 of the Constitution? and
(b) Whether the Ordinance violated Article 14 of the Constitution of India?
He sumbitted that neither of these grounds can be found in the present case; and hence, the challenge to the Ordinance may be repelled. He also urged that reduction of the term of the Committee of management, appointment of officials as persons-in-charge for the transitional period and the direction to conduct election of commitees of management within six months or at the most one year, are matters of policy, on which the legislature is entitled to come to its own determination, and courts shall not interfere with the same. He submitted further that the ordinance cannot be treated as invalid only because of aberrations if any, in the implementation of its provisions by the executive. He stoutly defended the Orders issued by the Government in furtherance of the mandate contained in the Ordinance. We will consider these various contentions one after the other.
71. Locus standi of the petitioners:
It may be true that the petitioners have no fundamental or other right to be continued in office as committees of management beyond the statutory term of office as at the relevant time. But the petitioners are entitled to invoke the jursidiction of this court raising a complaint that the Ordinance and executive action taken pursuant to it invader their right as members of the Society to insist that the affairs of the Societies shall be managed by committees of management elected by members from among themselves.
72. Dealing with an almost similar objection, the Supreme Court observed in R.C. Co-oper v. Union of India (6 supra) that-
'he claims that in enacting the Act, the Parliament has violated a constitutional restriction imposed by Part XIII on its legislative power and in determining the extent to which his fundamental freedoms are impaired, the statute which the Parliament is incompetent to enact must be ignored and asuming that he is not entitled to enforce his guaranteed right as a director, the petition will not fail'.
The petitioners seem, to be right in their submission that even if they have no right to enforce as members of the committee of management, they are entitled to complain about the arbitrary invasion of the right of the Society, of which they are members, to be managed by elected Committees by reason of an arbitrary enactment which violates Article 14 of the Constitution and which the State had no competence to enact. In view of the constitutional objection of a fundamental nature which the petitioners have raised, I am not inclined to throw out these petitions on the basis of the preliminary objection. The preliminary objection should therefore fail.
73. Validity of the Ordinance
Ordinance is a piece of legislation, though it is not enacted by the legislature. Article 213 enables the Governor, subject to the limitations mentioned therein, to undertake legislation which may not brooke any delay when the Legislature is not in Session and the Governor is satisfied that circumstances exist which render it necessary to take immediate action. The power is nevertheless legislative in character. The validity of the Ordinance has to be tested on the same grounds as a legislation.. Hence grounds like indecent harts, non-application of the mind of the Governor etc; are irrelevant in testing the validity of the Ordinance K. Nagaraj v. State of A .P. (10 supra) A.K. Roy v. Union (3 supra), R.C. Co-oper v. Union of India (6 supra). The propriety, expediency and necessity for an Ordinance just as much as a law enacted by the legislature, are beyond the scope of judicial review - T. Venkat Reddy v. State of A.P. (2 supra). This is clear from the wording of Article 213(2) of the Constitution of India itself.
74. Article 213(3) provides one of the grounds for invalidating an Ordinance promulgated by the Governor, viz., the extent of invalidity of any of iis provisions, had it been enacted by the Legislature and assented to by the Governor. The reference is obviously to the competence of the legislature with reference to the legislative lists and subjects and the impact of the measure on the rights of citizens under Part III or any other provision of the Constitution. The only ground of incompetence which has been raised in this case relates to Section 3 of the Ordinance for the reason that it trenches upon the power and jurisdiction of this court under Article 226 of the Constitution of India. I will deal with this ground in due course. I am now confined to the question whether the Ordinance violates any of the constitutional limitations contained in Article 213(1). Those conditions arc-
(1) that the legislature of the State is not in session-
(2) that the Governor is satisfied that -
(a) circumstances exist
(b) which render it necessary for him to take immediate action.
The Legislative Assembly of the State was prorogued by notification dt.30-5-1990. It is agreed that the date '30-6-90' mentioned in the counter affidavit of the State has to be read as '30-5-1990'. The first condition was thus fulfilled.
75. The next question is whether the Governor was satisfied about existence of circumstances manifesting immediacy for the measure. The satisfaction of the Governor should really be the satisfaction of the Council of Ministers, on whose aid and advice alone, the Governor has to act except to the extent to which the constitution requires him to act in his discretion (Article 163(1)). That the satisfaction is not the personal satisfaction of the Governor but that of the Council of Ministers admits of no doubt, particularly in view of the decision in Shamsher Singh v. State ofPunjab. The existence of such satisfaction is justiciable, but not the sufficiency of reasons for it -Lakhi Narain v. State of Bihar, R.C. Cooper v. Union of India (6 supra), State of Rajasthan v. Union of India (4 supra), A.K. Roy v. Union of India (3 supra), Venkat Reddy v. State of A.P. (2 supra), R.K. Garg v. Union (5 supra).
The question was considered as debatable in view of specific incorporation of Clause (4) of Article 213 and the corresponding provision viz., Article 123 of the Constitution by Constitution 38th Amendment Act and removal thereof by the 44th Amendment (A.K. Roy v. Union (3 supra)). I am of the opinion that the only question which is open now is whether the Governor/the Council of Ministers was satisfied about the existence of circumstances which spelt out immediacy of legislation, but not the necessity or expediency or Propriety or justifiability of the satisfaction.
76. I should however remind myself of the portentous words of Chief Justice Chandrachud, in A.K. Roy's case (3 supra). After dealing with the constituent Assembly debates on the Ordinance-making power, he observed-
'That power was to be used to meet extraordinary situations and not perverted to serve political ends. The Constituent Assembly held forth as it were, an assurance to the people that an extraordinary power shall not be used in order to perpetuate a fraud on the Constitution which is conceived with so much faith and vision. That assurance must in all events be made good and the balance struck by the founding fathers between the powers of the Government and the liberties of the people not disturbed or destroyed.'
77. In view of the decisions, among others referred to above, in Nagaraj v. State of A.P. (10 supra) and T. Venkat Reddy v. State of A.P. (2 supra), a detailed scrutiny of the satisfaction about the circumstances and the immediacy may not be feasible.
78. This takes us to the next phase of the argument of counsel for the petitioners that since the Chief Minister was out of the country, towards the end of May till the middle of July, there could not have been any meeting of the Cabinet, nor could it have tendered any advice to the Governor, nor, could there have been any satisfaction of the council of Ministers to inform the satisfaction of the Governor. Petitioners assert that in the absence of the Chief Minister, Council of Ministers could not have met and deliberated upon or advised the Governor on the promulgation of the Ordinance. They submit that even according to the very limited scope of judicial review, the question whether the Governor or in other words, the council of Ministers, was satisfied is a matter which has to be considered by this court.
79. If the petitioners are in a position to show that the Council of Ministers did not have or could not have had the satisfaction or advised the Governor, they may perhaps be entitled to succeed.
80. The Advocate-General has produced the records of the Council of Ministers before us in support of the assertion contained in the counter affidavit that 'the Chief Minister discharged his duty by communicating to the Governor the decision of the Council of Ministers including himself recommending promulgation of the Ordinance after following the procedure prescribed under the Rules of Business'. The records indicate that the proposal to promulgate the Ordinance was circulated among the members of the Council of Ministers as directed by the Chief Minister, and orders were obtained in accordance with the short-circuit procedure, provided in Rules 16 and 17 of the Rules of Business. I do not propose to go into this aspect any further, in view of the detailed discussion contained in the judgment of my learned brother Sardar Ali Khan, J. Records of the Council of Ministers do support the submission of the Advocate General that orders were obtained after circulation of the files as directed by the Chief Minister, and it was on the basis of the final decision of the Council of Ministers that the Governor promulgated the Ordinance. The Advocate General also furnished list of relevant dates with reference to the above record with copies to counsel concerned. If the list of dates and details submitted by the Advocate General is correct, there is no scope for any further enquiry, since it makes out that the Council of Ministers had arrived at the necessary satisfaction and advised the Governor accordingly to promulgate the Ordinance.
81. Another argument urged by counsel for the petitioners is that there was undue delay in the promulgation of the Ordinance and that bears out absence of good faith. Counsel submits that the respondents knew all along that the period of three years which was proposed to be prescribed by the amendment was almost over, as the term of elected Committee was to expire on 30-6-90. The Government must necessarily have known the need to conduct elections. Section 31(2)(b) of the Co-operative Societies Act entrusts the power to conduct elections to the societies Admittedly, in the present case, the Commissioner/Secretary to Government, Food and Agriculture (Co-operation) Department is also Registrar of Co-operative Societies. He could as well have initiated the proposal for amendment of the statute or promulgation of the Ordinance sufficiently early so that elections could be conducted in all the Co-operative Societies, prior to 30-6-1990. I do definitely find force in this submission; but that cannot, by itself, invalidate the Ordinance. I have found that even indecent haste is not a ground to invalidate legislation including Ordinance. These aspects may perhaps be relevant in dealing with the challenge to the administrative action taken pursuant to the Ordinance. I will deal with that aspect in that context later.
82. Even if I hold that the Ordinance was competently promulgated, I have to deal with yet another objection to its validity viz., that it is arbitrary and violates the constitutional guarantee contained in Article 14 of the Constitution of India.
83. Two submissions are made impugning the Ordinance as unconstitutional because of arbitrariness. The first is that it conferred unguided discretion in the executive to appoint persons-in-charge. Counsel submitted that Section 32(7)(a) deals with power of appointment of persons-in-charge. That power is available for exercise only if it is not possible to call a general meeting for the purpose of conducting election of the members of the committee, and not in cases where such impossibility is deliberately manipulated by governmental action. The second restraint is that a person or persons-in-charge appointed to manage the affairs of the Society would be subject to the control of the Government or of the Registrar. According to the Ordinance, these limitations are taken away. The impossibility to call a general meeting for the purpose of conducting election of members of the Committee in the present cases was caused by reduction of the term of office by amending Section 31 (2)(a) of the Act and due to the deliberate delay in promulgating the Ordinance till the last day viz., 30-6-1990 and not due to any act or omission on the part of any one of the petitioners. Entrustment of the management of the affairs of the Societies to official persons-in-charge, in these circumstances, is said to be unreasonable and the Ordinance which is designed to achieve that result is said to be tainted by arbitrariness. The next submission is that, if the Ordinance enables the Secretary to Government and the Registrar of Co-operative Societies to appoint themselves as persons-in-charge of the Societies, the element of control over the persons-in-charge will be completely lost. Yet another submission is that G.O.Ms: Nos. 418, 419 and 420, the Circular issued by the Registrar of Co-operative Societies on 30-6-90 and the orders issued by the subordinate functionaries thereafter clearly indicate that the intention of the Government was only to exclude co-operators and entrust the management of the Co-operative Societies till such time as elections are held, to officials of any Government Department. Counsel submits that in so far as the Ordinance enables entrustment of power of management of Co-operative institutions to the exclusion of Co-operators to officials as persons-in-charge without any statutory control, it is arbitrary. The anxiety to exclude the courts and the statutory injunction that courts shall not issue directions in the matter of appointment of persons-in-charge of the Co-operative Societies is said to be another manifestation of arbitratiness. Yet another submission which they made is that the effect of Section 3 and 4 of the Ordinance is to over-rule the ratio laid down by this court in the two Bench Decisions in Multicoops case and Ranga Reddy's case (981 supra).
84. Counsel appearing for the petitioners in W.P.Nos. 9182 and 9642 of 1990, submitted that even legislations are within the purview of Article 14 of the Constitution of India. He referred to the decisions of the Supreme Court in E.P. Royappa v. State of Tamilnadu, : (1974)ILLJ172SC , A.L. Karla v. The Project and Equipment Corporation of India Ltd., 1984 S.C. 1361, Neelima Misra v. Harinder Kaur Paintal and Ors., : [1990]2SCR84 . These decisions make it unmistakably clear that the principle of equality enshrined in Article 14 must guide every State action, whether it be Legislative, Executive or Quasi-judicial; and that 'any illegal or irrational or arbitrary action or decision whether in the nature of Legislative, Administrative or Quasi-judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitution of India'. Reference may also be made in this connection to the observations contained in the decisions in Menaka Gandhi v. Union of India, : [1978]2SCR621 , Ajay Hasia v. Khalid Mujib Sehravardhi, : (1981)ILLJ103SC and Somraj v. State of Haryna, : (1990)IILLJ1SC .
85. We have no hesitation in accepting this submission that the petitioners are entitled to assail the Ordinance on the grounds that it confers arbitrary power on the Government and its surrogates. We have to apply this test to such of those provisions of the Ordinance which are specifically challenged by the petitioners. If the Ordinance or any provision thereof curtails the power or jurisdiction of court under Article 226 of the Constitution of India to issue appropriate writs in the nature of Certiorari or mandamus that may be unconstitutional, because the State has no competence to curtail such power. Any such curtailment of power or jurisdiction of this court can be effected only by Parliamentary enactment; and that too only by amending the Constitution. The question whether the Ordinance or any of the provisions curtails the power of the court is a matter for detailed examination. I am also of the opinion that if the petitioners are right in their submission that the object of the Ordinance is to over-rule judicial decisions of the two Division Benches, referred to above viz., Multi Coops case and Ranga Reddy's case, such provisions may have to be struck down. Here again I have to examine the rival contentions in greater detail.
Section 2 of the Ordinance: Amendment of Section 31(2)(a) of the Principal Act
86. I have to consider the question whether Section 2 of the Ordinance which amends Section 31 (2)(a) of the Principal Act reducing the term of elected Committees of management is arbitrary and unreasonable. No point was urged that it was incompetent for the State Legislature to enact that provision. The only argument was that the term was revised as five years by amending Act 16 of 1989 only after a detailed and depth study by a House Committee and its report that wasteful expenditure on elections at shorter intervals could be avoided if the term was fixed as five years as in the case of elections to the Legislatures. Counsel for the petitioners urged that the term was reduced due to extraneous political reasons to capture control of the co-operative movement in the State.
87. I am not impressed by this submission, because the Advocate General is right in his objection that the policy or motive of the legislation is beyond the scope of review by courts. He also Submits that the State was of the opinion that the growth of vested interests in the co-operative movement had to be curtailed and that could be best done by reducing the term as three years as in other States. There is some controversy whether the term is three years in all other States. May be it is not. I am not concerned with the wisdom of the policy of the State in reducing the term nor am I to crimes the reasons with an eagle's eye to find fault with them. I am not in a position to hold that the reasons mentioned by the State are totally irrelevant or extraneous to the purposes of the enactment altogether. I, therefore, repell the challenge against Section 2 of the Ordinance.
88. Section 3 of the Ordinance:
I have noticed that Section 3 of the Ordinance is in the nature of a mandatory direction to courts not to entertain any proceeding, challenging the appointment of persons-in-charge by the Government, or as the case may be the Registrar, (Clause (ii)) and not to direct appointment or continuance of a Committee which ceases to hold office as persons-in-charge merely on the ground that such Committee had earlier held office (Clause (i)). Prima facie, these provisions are objectionable, if the same are addressed to the High Court.
Article 226 of the Constitution of India provides that-'Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, Prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by part III and for any other purpose.'
89. Petitioners seem to be right in their submission that Section 32-A which was introduced by Section 3 of the Ordinance is meant to curtail the plenary powers of the High Court as conferred by Article 226 of the Constitution of India, if the provision takes in the High Court also within its comprehension.
90. The counter affidavit provides interesting reading on this aspect of the case. A few emphatic assertions form the core of the State's defence. The first is that the decisions of the Division Benches speaking through Bhaskaran C.J., and Jeevan Reddy, J. (as he then was) in Multicoop's case and Ranga Reddy's case did not correctly reflect the ratio of the decision of the Full Bench in Gidda Reddy's case and are therefore not good law. It is then urged that even if the observations which are only in the nature of obiter dicta (in Multicoops case and Ranga Reddy's case) may be correct, that position has now been altered by the intervention of legislation; and that alone shall govern appointment of persons-in-charge. Yet another submission is that Section 32-A which was newly introduced in the parent Act by Section 3 of the Ordinance is not meant 'to circumscribe the power of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 of the Constitution.'
91. The Advocate General invited our attention to the Full Bench decision in Gidda Reddy's case to demonstrate that the Division Bench decisions in Multicoops and Ranga Reddy proceeded on an altogether wrong assumption in directing that in all cases of termination of the period of elected Committees of management, the Government or the Registrar should appoint the same persons as persons-in-chafge except when they are guilty of serious lapses. Advocate-General also laid stress on the fact that Section 31 (2)(b) of the Act, as it stood at the relevant time, was a provision enabling the Registrar to grant extension to an elected committee of management to continue in office beyond its term for reasons to be recorded in writing; whereas by the time Multicoops case and Ranga Reddy's case came up for consideration, there was no such provision for extension at all. The assumption made in the two later decisions that the Full Bench was authority for the position that the elected Committee should be continued in office as persons-in-charge is therefore said to be faulty. He urged that in neither of the two Bench decisions was the question of appointment of persons-in-charge under Section 32(7)(a) of the Act directly and substantially in issue, and therefore the observations on that aspect cannot form the ratio which has to be followed.
92. True it is that the Full Bench held that the Committee, the term of which had expired and which was being extended from time to time 'had no vested right to continue after its term' and that 'its continuation depended upon the exercise of discretion by the Registrar to extend its term or not' (para 28). The Full Bench was equally emphatic that 'the discretion has to be exercised for the purposes of the Act, in good faith, on relevant grounds (para 21). After laying down these principles, the Full Bench examined the record and the reasons stated in the counter affidavit of the Registrar as justification for not extend in the term of office any further. The court found 'though some of the allegations were irrelevant, it was not a case where there was no material at all to form an opinion.'
93. These observations are very relevant in understanding the scope of the discretion of the Registrar not only under Section 31 (2)(a) of the Act as it stood them, but also under other cognate provisions which confer discretion on the same authority in equally wide terms. We should also take note of the fact that Section 31(2)(b) of the Act, which the Full Bench interpreted in the above cast, required the Registrar to record reasons only for extending the term of the Committee, but the appellant before this court was a member of the committee whose term was not extended; and there was no statutory requirement to record or even to state any reason in aid of exercise of such power. This Court insisted, even in the absence of an obligation to record or even state reasons, that the discretion could be exercised (1) only for the purposes of the Act, (2) in good faith, and (3) on relevant grounds. I understand that to be the ratio of the decision in Gidda Reddy's case. I am also of the opinion that the two Bench Decisions only followed the above ratio as they were bound to. The two Division Bench decisions elaborated 'the purposes of the Act', obviously with reference to the preamble of the 1932 Act 'It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body of the law, the sense and reason is the soul'. It is ordained that the discovery of the soul of law shall be the special function of judges. That was what this court did repeatedly in Gidda Reddy, Multicoops and Ranga Reddy cases. I am therefore, not in a position to accept the submission in the counter affidavit and reiterated by the Advocate General that the Division Benches in Multicoops and Ranga Reddy cases were at variance with the Full Bench in Gidda Reddy's case.
The professed purpose of the Ordinance was to invalidate the ratio in Ranga Reddy's case. Ordinarily that could have been done only by a judicial pronouncement, either in an appeal or by a Co-ordinate or larger Bench on a reference. In any case, the legislature cannot over-rule a judicial pronouncement A validating legislation may, by express recital therein and by supply of the basis or foundation therefor, render a judicial pronouncement ineffective. That is usually done by commencing the validating provision with a non-obstante clause. In the present case, I do not find any validation; nor do I find any non-obstante clause. I am, therefore, not in a position to hold that Section 3 or any other provision of the Ordinance has the effect of in validating the Bench decision in Multicoop's and Ranga Reddy's cases.
94. The Advocate General is right in his submission that the Legislature has power to amend the law without impairing any prior judgment; and the enacted law has to be given effect in terms of its promulgation. It is also true that the observations which this court made may cease to be relevant, if the legal basis of such observations is altered by the legislature. The moot question therefore is whether the Ordinance effected any such basic alteration in the law relating to the appointment of persons-in-charge of Committees of management when elections were not conducted within the time specified in Section 31(2)(b) of the Act
95. The first thing which stares at me is the fact that Section 32(7)(a) of the Act has not undergone any change. The only change which was effected by Section 3 of the Ordinance was to take away the power of the courts to entertain any proceedings against appointment of persons-in-charge either by the Government or the Registrar, and to deprive the court of any power to direct appointment of a time-expired committee as persons-in-charge for the only reason that it was once elected.
96. The Advocate General submitted that Section 3 of the Ordinance may be read as explanatory or clarificatory of Section 32(7)(a), since it only provides that the court shall not direct the appointment of the elected Committee as persons-in-charge under that provision for the only reason that it had held office earlier. On an examination of Section 3 of the Ordinance more closely in the light of the above submission, the resultant position is as follows:
a) The Government may appoint the same committee as persons-in-charge, but the Court shall not direct that
b) Even the court may direct appointment of the same committee as persons-in-charge, but not due only to the fact that it had held office earlier, or
c) The court may direct appointment of the same committee as persons-in-charge for other relevant reasons; or
d) The court may direct appointment of any or even most of the members of the committee whose term has expired as persons-in-charge.
In other words, Section 3 of the Ordinance, read with Section 32(7)(a) of the Act, restricts the choice of this court for issue of a writ of mandamus to three alone of the four possible alternatives. The option that is excluded is to direct appointment of the elected Committee, the term of which has expired, as persons-in-charge for the only reason that it had held office earlier.
97. I find it difficult to accept the submission of the Advocate General that Section 3 of the Ordinance is only explanatory or clarificatory of Section 32(7)(a) of the Act. It does not state to be such; nor are there any indications in the provision to that effect. It is really an independent provision, meant to exclude the jurisdiction of courts. The counter affidavit asserts that such exclusion was what was meant. It also gives the reasons:
(1) the two Bench Decisions which, in effect, directed the continuance of the elected Committees as persons-in-charge except in some extraordinary situations did not correctly reflect the actual state of the law; and
(2) that officials as persons-in-charge cannot be tabooed as the Bench Decision did.
The Advocate General submitted that Sub-section 32(A)(i) was meant to restrict the power of this court to issue directions, whereas Sub-section (ii) was directed only against subordinate courts.
98. There are more difficulties than one to accept this submission. Reading Section 32-A as introduced by Section 3 of the Ordinance, there is no escape from the impression that the negative mandate contained therein is addressed to all courts both in Sub-section (i) and Sub-section (ii). An argument that the phrase. 'No court shall' has different meanings in the two Sub-sections do not commend itself for our acceptance. The rule of interpretation uniformly accepted has always been that the same term shall bear the same meaning when used in any part of the enactment, unless the context compels a different meaning. It shall be more so when the enacting provisions contains the word to be interpreted and two different stages of the same proceedings are covered by the two Sub-sections. Therefore, we read Section 32-A to mean a mandate to courts not to entertain any proceedings challenging appointment of persons-in-charge and not to direct appointment of elected Committees as persons-in-charge after the expiry of the term merely on the ground that it had held office earlier.
99. True it is that it is asserted in the counter affidavit that the content of the Ordinance is not to circumscribe the power of the High Court under Article 226 of the Constitution or of the Supreme Court under Article 32 of the Constitution. But the Advocate General proceeded slightly differently in his argument. He submitted that this court may entertain proceedings challenging appointment of persons-in-charge, but may not issue directions of the nature specifically eliminated under Sub-section (i) of Section 32-A. I cannot accept this submission. If Sub-section (ii) is addressed only to courts other than the Supreme Court and the High Court, Sub-section (i) also can apply only to such courts.
100. A far more formidable objection in accepting what the Advocate General argues at variance with the defence of the State in its counter affidavit is the question of competence of the State Legislature and therefore of the Governor to amend Articles 226 and 32 of the Constitution of India.
101. The power to issue directions in the nature of mandamus is part of the jurisdiction conferred on the High Courts under Article 226 of the Constitution of India; and any impairment or abridgment of that discretionary jurisdiction so as not to issue a writ of mandamus in the cases of Co-operative Societies except in a specific manner could be effected only by a constitutional amendment and not by other devises. In State of U.P. v. Dr. Vijay Anand Maharaj, : [1962]45ITR414(SC) the court had to consider the validity of a provision in Section 11 of the Utter Pradesh Act 14 of 1956 to the effect that-
'the court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by Sections 2 and 8 of this Act.'
The Supreme Court held that the State Legislature had no power, because of Article 245 of the Constitution of India, to enact the impugned provision in U.P. Act 14 of 1956 mandating the court to exercise its jurisdiction under Article 226 of the Constitution of India in a particular manner.
102. In the present case, I need only say that in so far as the impugned provision issues a negative statutory mandate to the High Court not to exercise its power to issue writ of mandamus in a particular manner, the provisions of Section 32-A(i) as introduced by the Ordinance is equally void in the constitutional sense. It cannot be salvaged either as an independent provision or as an explanation or clarification of Section 32(7)(a) of the Co-operative Societies Act.
103. It shall however be my endeavour of the Court to save any enactment if that be reasonably possible, of course without impairing any constitutional obligation, the jurisdiction that Article 226 has conferred on us and the rights of citizens under Part III or other provision of the Constitution. If I read Sub-section (i) as a mandate to courts other than the High Court or the Supreme Court, as in the case of Sub-section (ii) of Section 32- A, both provisions can be reconciled as falling into a piece. We can thus save the provision from constitutional invalidity.
104. We have the authority of the Suprme Court In Re Kerala Education Bill 1957, AIR 1958 SC 586 in support of this proposition. Dealing with Clause 33 of the Bill which provided:
'Courts not to grant injunction:
Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any . temporary injunction or make any interim order restraining any proceedings which is being or about to be taken under this Act.'
The court observed-
' Article 226 of the Constitution confers extensive jurisdiction and power on the High Courts in the States. This jurisdiction and power extend throughout the territories in relation to which the High Court exercises jurisdiction. It can issue to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs of the nature mentioned therein for the enforcement of the fundamental rights or for any other purpose. No enactment of a State Legislature can, as long as that article stands, take away or abridge the jurisdiction and power conferred on the High Court by that article.'
Proceeding further, the court upheld Clause 33 of the Bill as applying only to courts other than the High Court acting under Article 226 of the Constitution of India in the light of the well known principle of construction that if a provision in a statute is capable of two interpretations, then that interpretation should be adopted which will make the provision valid rather than the one which will make it invalid.
105. In state of Utter Pradesh v. Vijaya Anand (19 supra) the Supreme Court held-
'While Article 226 confers a discretionary power on the High Court, the second part of Section 11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Article 226 of the Constitution and which would have the effect of invalidating it to that extent On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under Article 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity.'
106. Section 32 (7) (a) confers a rather wide discretion on the Government/Registrar to appoint or not to appoint the elected Committee, term of which expires, as persons-in-charge. It also enables those authorities to appoint officers of any other department entirely unconnected with the Co-operative movement The power thus conferred is seemingly arbitrary. The Full Bench in Gidda Reddy and two Division Benches in Multicoops and Ranga Reddy cases found guidelines in the 'purposes of the Act' as controlling the apparently wide discretion. By eliminating judicial review altogether under the new Section 32-A of the Act, the Ordinance has removed those guidelines with the result that the Government/Registrar may appoint any one other than the Committee whose term expires, as persons-in-charge. What the State claims is that it understands the problems of each Society better than the courts; and hence the courts shall have no power to review action which the State or Registrar takes under Section 32(7)(a) of the Act. Even the 'purposes of the Act' which were found to be elements controlling the discretion (Gidda Reddy's case) are therefore of no avail now. The Orders issued on 30-6-1990 pursuant to the Ordinance provide that only officials shall be appointed. The discretion if any is sought to be straight-jecketted by the Registrar enclosing proforma orders to each of the officers with instruction to fill up the blanks. The respondents are said to have fettered the exercise of statutory discretion and that is said to be arbitrary. Yet another ground which counsel for the petitioners urge is that the Ordinance and orders issued thereunder annihilate the discretion of the Registrar under Section 32(7)(a) to appoint persons-in-charge. The executive instruction stultifying statutory discretion is said to be illegal even if such instructions indicate principles of policy, since statutory discretion shall not be hide-bound by Policy. It is also submitted that the Registrar-cum-Secretary to Government has appointed himself as the Chairman of the apex State Banks and subordinate functionaries are enabled to appoint themselves as such with the result that statutory control under Sections 33 and 34 and the revisional powers under Section 77 are rendered ineffective. Reliance is placed on the decision in APCCAD Bank Anr. v. V. Nagaraju, 1982 (2) APLJ 450 to urge that G.O.Ms. Nos. 418, 419 and 420 and the resultant orders as illegal.
107. The instructions contained in G.O.Ms. Nos. 418, 419 and 420 and the cricular of the Registrar of Co-operative Societies apply to over 7,500 Societies. There will not be sufficient number of officers of Co-operative Department to be persons-in-charge. They are appointed only as part-time persons-in-charge of a number of Societies in addition to their own functions. This may lead to-
(1) appointment of officers of other departments who are entirely unrelated to co-operative movement as persons-in-charge, leading to its collapse, or
(2) appointment of politicians as persons-in-charge in a bid to manipulate elections and to take over the Societies.
It is submitted that neither of these eventualities is desirable to advance the interests of the membership of the Societies or Public interest. The Ordinance in so far as it enables arbitrary and unguided exercise of power, it is urged, is itself violative of Artcile 14 of the Constitution of India.
108. Advocate General countered these submissions. According to him Ordinance does not affect the powers of the Registrar under Section 32(7) (a) of the Act. Section 3(i) of the Ordinance does not provide for appointment of officers only as persons-in-charge. Others also may be appointed. Even the same Committee itself or ;most of its members may be appointed as persons-in-charge. The only effect of Section 3(i) of the Ordinance is to reserve the power of appointment of persons-in-charge to the Government or the Registrar who know all the ramifications of the local situations and local needs better, and to restrict the power of the court to direct appointment of the committee whose term has expired as persons-in-charge, for the only reason that it had held office earlier. He also submits that a policy decision which the State has adopted that provision for management of the affairs of the Co-operatives till elections are conducted as enjoined by Section 4 of the Ordinance shall be made by the executive Government and not by courts, cannot be assailed as arbitrary, in proceedings in this court, and that too, at the instance of persons who have no manner of right to continue in management of the Societies.
109. I have no doubt that Section 32(7)(a) of the Principal Act conferred a very wide discretion on the Government or the Registrar to appoint persons-in-charge of the management of the affairs of the Co-operative Societies 'if there is no Committee or in the opinion of the Government or the Registrar, it is not possible to call a general meeting for the purpose of conducting election of members of the Committee'. It is true that the only circumstances in which such appointment can be made are specified in the section, but there are no indications as to who may be appointed. Attempts were made by this court on more occasions than one to find some guideline in 'the purposes of the Act', 'the principles and ideals underlying the co-operative movement' and 'the spirit and scheme of the Act' as controlling the rather wide discretion. If as the State contends, there are not nor shall there be such limits, the unbridled power conferred on the executive may itself be annihilative of the rule of law and render the provision invalid as arbitrary and violative of Article 14. According to side it is the duty of courts to presume in favour of constitutionality, and read, if possible, conditions indicating built-in safeguards against arbitrariness in statutory provisions conferring apparently unlimited discretion on the executive. It was that anxiety to discern factors controlling exercise of discretion that prompted a Full Bench of this court in Gidda Reddy's case to read restraints on the power of the State of the Registrar not to grant extension to an elected Committee, the term of which had expired, and to relate such restraints to the 'purposes of the Act 'bona fide' and 'on relevant considerations.' This the Full Bench did in spite of its finding that the committee had no right to insist upon its continuance in office and the absence of any obligation to state or record reasons for refusal to extend its term. It was that very same anxiety to discover some guideline any where in the statute so as to save it from the vice of arbitrariness that prompted the two Division Benches in Multicoops and Ranga Reddy cases to find that 'the spirit and scheme' of the Act and the need to preserve democracy in co-operatives as factors which would guide the executive in exercise of its power under Section 32(7)(a) of the Act. Similar decision of this court directing appointment of the elected Committee whose term has expired subject to well known exceptions as persons in charge are alegion. We need refer to only a few of them. (W.P.325/85 dt.8-3-85 and W.P.1424/85 dt.4-3-85).
110. We are aware that the State resents the attempts made by this court repeatedly to find guidelines canalising statutory discretion in this area. That is understandable. The professed purpose of promulgation of the Ordinance was to eliminate such guidelines as the court has repeatedly found as controlling the discretion. But this court found those guidelines on the basis of the observations of the Supreme Court in Barium Chemicals Ltd. v. Company Law Board (7 supra) as is evident from the following observations in Gidda Reddy's case;
'Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.'
111. We have only two options in this matter, either we accept the submission of the State that the Government or the Registrar has unregulated power to appoint any one as person-in-charge of the management of the affairs of the Societies and strike down the power as arbitrary and violative of Article 14 of the Constitution of India; or we read indications in some provision or the other including the preamble as regulating and guiding the discretion and thus save it from constitutional invalidity. I opt in favour of the latter, because, that is the only option which courts shall adopt in this situation. We have to lean in favour of constitutional validity of legislation rather than be anxious to strike down if that alternative is reasonably possible. I am therefore not persuaded to accept the submission that counsel for the petitioners and the Advocate General pressed upon us of course for different purposes - that the Ordinance has removed all restraints related to the 'purposes of the Act' or 'the spirit and scheme of the Act' or 'democracy in co-operative institutions'. I am of the opinion that 'purposes of the Act' its scheme and spirit, its soul - for that matter of any legislative instrument - are the leading strings which shall rein in the unruly horse of arbitrary power and 'bona fides' and 'relevant grounds' are check-mates to ensure that the executive entrusted with any power does not behave as a bull in a china shop in its exercise. The State may like to be beyond all controls in its actions. The Court has a duty to be the sentinel against such absolutism and arbitrariness.
112. I respectfully follow the guidelines which the Full Bench discerned as guiding and directing discretion of the Government or the Registrar in the matter of management of the affairs of the co-operatives - 'purposes of the Act', 'bona fides' and 'relevant grounds', and the elaboration of the same principle with specific reference to the power under Section 32(7)(a) of the Act in Multicoops' and Ranga Reddy cases.
113. I hold that this basis of Section 32(7)(a) has not been altered by any provision in the Ordinance. Consequently, an exercise of the power shall be tested for compliance with those guidelines whoever exercises that power Validity of G.O.Rt.Nos. 418, 419 and 420 of 1990, circulars and the orders of the Registrar.
114. Government issued three orders one containing guidelines for appointment of officials as persons-in-charge till the elections are conducted, the 2nd and 3rd appointing officials viz., the Secretary to Government, Co-operation, the Managing Directors of the two Societies, Joint Secretary - Co-operation, and Additional Registrars of Co-operative Societies as persons-in-charge in replacement of the elected Board of Directors and a circular of the Registrar of Co-operative Societies on the same date appointing District Collector as Chairman and District Co-operative Officer, General Manager, District Co-operative Central Bank Ltd., as Member/person-in-charge of the committee to manage the affairs of the District Co-operative Central Banks. He also directed that officials alone shall be appointed as persons-in-charge. We have referred to the fact that one of the Deputy Registrars of Co-operative Societies appointed about 18 officials to be temporary persons-in-charge of 121 Primary Co-operative Societies in Nuzvid, Krishna District. The intention is therefore clear viz., that the time expired committees shall be excluded from appointment as persons-in-charge altogether, and only officials shall be so appointed. It is also clear from the circular issued by the Registrar of Co-operative Societies that in respect of Primary Agriculture Co-operative Societies, those who were to be appointed as persons-in-charge were not only officers of Co-operative Department but these of other Government departments and minor minions like field Supervisors of Central Banks.
115. It is necessary to advert to the pleadings in this regard in some of the petitions, which are, by and large, representative in character.
116. W.P.No. 8783/90 is filed by Poduru 'alleswara weavers' Co-operative Production and Sales Society Ltd., represented by its President, West Godavari District W.P.No. 9422/90 is filed by Bajaj Mixed Fabrics Handloom Weavers Co-operative Society, Karwan, Hyderabad, represented by its President. WP.No. 8783/90 was filed before the promulgation of the Ordinance, apprehending the reduction of term of office of the elected Committee of management, whereas WP.No. 9422/90 was filed after its promulgation. Petitioners submit that these and the other petitioner Societies consist of Weavers exclusively and depend almost entirely, on the expertise of the Weavers for the efficient conduct of the Societies. Imposition of officials who have no sense of involvement in the trade, it is apprehended, will seriously affect the working of the Societies and the fate of their members. Counsel submits that the special features of the Weavers Co-operatives were completely ignored in appointing officials as persons-in-charge.
117. W.P.Nos. 9246 and 9204/90 are filed by 19 Primary Agriculture Co-operative Credit Societies of Vizag, East Godavari and Ananthapur Districts respectively. W.P.No. 9218 and 9212 of 1990 are filed by the Primary Agricultural Co-operative Credit Societies of Prakasam and Mahabubnagar Districts. W.P.No. 9128/90 and W.P.Nos. 9641 and 9751 of 1990 are also filed by other Primary Agricultural Co-operative Credit Societies of East Godavari and Krishna Districts, individually.
118. It is asserted that election of Committees of managements of other Societies in the same area were conducted even in the coastal area without any difficulty soon after the cyclone; and therefore there is no bona fides in appointing official person-in-charge on the ground that elections could not be conducted in time due to cyclone any where in the state and that too in some types of Societies only.
119. The District Co-operative Central Bank of West Godavari at Eluru, represented by its President is the petitioner in W.P.No. 9182/90. The two apex banks viz., the Andhra Pradesh State Co-operative Bank Ltd., and the A.P. State Agricultural Development Bank, are concerned in WP.Nos. 9202/90 and 9182/90. WP.No. 9384/90 was filed by the erstwhile managing Committee of Hyderabad District Co-operative Central Bank. W.P.No. 9203/90 is filed by the Mulkanoor Co-operative Rural Bank Ltd., by its authorised agent The Guntur District Milk Producers Co-operative Union Ltd., represented by its erstwhile Board of Directors has filed W.P.No. 9350/90. The presidents of the various District Co-operative Central Banks have joined as petitioners and filed W.P.No. 9202/90.
120. The District Co-operative Banks and the Primary Agricultural Societies affiliated to them, as also the Primary Weavers Co-operative Societies and the Primary Milk Producers' Co-operative Societies are thus petitioners.
121. The averments in the petition in each category being almost the same, I refer only to the relevant facts in a few of those cases.
122. W.P.No. 9202/90 is filed by the Presidents of 20 district Co-operative Banks. The 1st petitioner Sri D. Srinivasa Rao was the President of the A.P. State Co-operative Bank and the A.P. State Agricultural Development Bank. All the 20 petitioners are members of the Committees of management of the two apex Banks. Under Section 25 of the Co-operative Societies Act, Presidents of the District Co-operative Central Banks are delegates in both the apex banks. As per bye-laws of the apex banks, the general body and committee of management of both the banks consist of such delegates. The petitioners were elected as Presidents of the District Co-operative Central Banks and automatically became delegates, -members of the general body and members of the Committees of management of the two Banks.
123. It is asserted in the affidavit that the affairs of the two Banks were being conducted satisfactorily during the period when these committees were in office. Their term would have expired by 30-6-92 by reason of the amendment of Section 31(2)(a) of the Co-operative Societies Act, 1964, by Act 16 of 1989. Petitioners challenged Ordinance No. 5/90 and G.O.Ms.Nos. 419 and 420 dt.30-6-90, by which the elected Committees were replaced by official persons-in-charge. Petitioners assert that the Ordinance and the orders issued thereunder are products of the influence of totally extraneous and irrelevant considerations and are also vitiated by legal and factual mala fides. Petitioners also assert that the elected Committees of management were working exceedingly well to co-ordinate and lead the Co-operative credit Organisations in the State. The factual details in this regard which the petitioners have asserted, were not controverted in the counter affidavits. I will advert to such of the relevant details in due course. Petitioners have also asserted that two of the important allegations mentioned in the counter affidavits namely that reduction of the term was necessary to avoid creation of vested interests due to the longer term of office of elected Committees, that it was in the interests of the better administration of the Societies and to eliminate bogus members without removing whom it will not be possible to conduct elections, do not apply to them. These allegations are countered in the reply affidavit along with which details relating to the working of the two banks were also furnished. It is asserted that there was no question of any bogus membership in the two apex banks, since general body of these banks consisted only of delegates of 22 District Co-operative Central Banks and there was no bogus members in the two apex banks.
124. The statements of Accounts of the two banks which counsel for the petitioner produced during the course of arguments show that the two banks were better managed during 1987-88 onwards when the elected Committee took office, rather than during the period ending on 30-6-87 when officials were holding charge of the affairs of the banks. During the period upto 30-6-87. percentage of recovery of loans for 1980-81 was 65.90, for 1981-82 - 61.21, for 1982-83 - 57.23, for 1983-84 - 63.35, for 1984-85 - 54.41, for 1985-86 - 42.28, and for 1986-87 - 63.20. For 1987-88 when the elected Committee assumed office, recovery was 69.90%, which was more than in any year from 1981.
125. The District Co-operative Central Bank, Eluru, is one of the constituents of the two apex banks. The President of that Bank is the petitioner in W.P.No. 9182/90. It is asserted that there was no justification for reduction in the term of office of the elected Committee of management It is stated that the bank has furnished credit facilities totalling Rs. 100 crores on short term loans and Rs. 57 crores on long term loans. Its membership consisted of 253 Societies including Primary Agricultural Co-operatives, large scale Co-operatives, Co-operative Rural banks etc. The total membership of the affiliated Societies is said to be 6,07,000. Petitioner asserts that during the years 1987-90, there was phenomenal growth and success, and the bank was able to render relief to those affected by cyclone to the extent of Rs. 1700 lakhs, that recovery of loans was maximised upto 97%, that 219 out of 253 member societies have paid off all the dues to the Central Bank, that such performance attracted encomiums by the State Government, and therefore there was no reason which justified reduction in the term of its office. Petitioner has produced particulars of financial dealings of the District Co-operative Bank, Eluru Co-operatively for the period 1984 to 1987 when official persons were holding charge of the society and the period from 1987 to 1990 when the elected committee of management was in office. The membership of the society as on 30-3-1987 was 2.5 lakhs. It increased by 30-6-1987 to 5.75 lakhs, before persons- in-charge laid down office. On 30-6-1990 it had increased by 0.79 lakhs aggregating 6.54 lakhs members. The maximum amount lent in short term lending during 1984 to 1987 was Rs. 44 crores and long term loans was Rs. 1.52 crores. The amount of short term lending during the period 1987-90 reached Rs. 102.89 crores and long term lending went upto Rs. 20.85 crores. The total amount of lending during 1984-87 was Rs. 79.1 crores towards short term and Rs. 1.88 crores long term. Comparative figures for the past three years when the Committee of management was in office are Rs. 250.64 crores short term and Rs. 57.34 crores long term. The maximum percentage of recovery during the period 1984 to 1987 was 88.7%, i.e, in 1984-85; the lowest percentage of recovery in 1985-86 was 61.9% and the percentage of recovery in 87-88 when the committee took over management was 92.9%. It went upto 97% during 1988-89 i.e. the next year. The rate of recovery of long term loans during 1989-90 is 82% and for short term loans 65% in spite of cyclone and flood and waiver of loans upto Rs. 10,000/- announced by the Central Government The state has not controverted these figures.
126. It is very significant to note that according to the proceedings of the Registrar of Co-operative Societies, which the respondents produced during the course of arguments that the membership of all the 253 Primary Societies affiliated to this Bank had been verified prior to 31.5.1990.
127. The A.P. Urban and Town Co-operative Banks Association representing 55 banks in the state has filed W.P.No. 9400/90. The petitioner asserts that the Ordinance and the executive action taken pursuant thereto are all politically motivated and are meant to wrest control of the cooperatives from the present managements which owe allegiance to political parties other than the one in power. Petitioner also asserts that there was no justification to insist that only officials in total exclusion of co-operators should be appointed as persons-in-charge till the elections are conducted. Details of the manner in which officials took charge of some of the 55 members societies - one of them even after the interim order dated 3-7-1990 - are mentioned in the additional affidavit. We will advert to these aspects in due course.
128. The District Co-operative Banks of Hyderabad and Kakinada are concerned with W.P.Nos. 9384 and 9246 of 1990. The pleadings follow the same pattern. They also assert that there was no bogus membership. According to the details furnished by the Advocate General, verification of membership of all societies affiliated to the petitioner in W.P.No. 9746/90 was over before the end of May, except in 5 out of 445 Societies.
129. The Board of Directors of the Guntur District Milk Producers Co-operative Union is the petitioner in W.P.No. 9350/90. Petitioner asserts that the affairs of the Society were being conducted satisfactorily, that there was no bogus membership, that the Government had accepted and acquiesced in the ratio of the decisions in Multicoops and Ranga Reddy cases, by issue of Memo.No. 389 I/Co-op. IV/89-1 dated 3.2.89 to the effect that 'the Government have further examined the question of appointment of persons-in-charge under Section 32(7)(a) of the A.P. Co-operative Societies Act, 1964, where necessary, and under Section 131 of the said Act direct that ex-committee members be appointed as persons-in-charge of the Societies provided that there are no allegations against them and where elections are not conducted due to Government Order.'
130. I have referred to the pleadings in some of the Writ Petitions to show that the case of the petitioners is that they had been managing the affairs of the respective Societies satisfactorily - they assert more satisfactorily than when officials were incharge of the Societies.
131. The District Co-operative Bank, West Godavari, Eluru, claims that it is one of the foremost co-operative credit institution in the country; that statement is not controverted. The Mulkanoor Co-operative Rural Bank in W.P.No. 9203/90 claims that it is adjudged as the best Co-operative credit institution in the country consistently for a long period of time and that assertion also has not been controverted by the State. In view of the above uncontroverted assertions in the pleadings I will be just in assuming that the affiars of these societies managed satisfactorily by the elected Committees of management. Even if there are stray instance of mismanagement, the State has not chosen to highlight any one of them. Though it is asserted in the counter affidavit that there was enrolment of bogus membership in the Societies and that the committees of management did not remove such bogus members in spite of directions, the State has not chosen to specify even in its additional affidavit as to which are the societies in which there were large scale enrolment of bogus/ineligible members and that they continue without removal in spite of departmental efforts in that direction.
132. 'The Advocate General has brought to our notice two proceedings of the Registrar of Co-operative Societies in this regard to support the submission that there was large scale enrolment of bogus/ineligible members in the Societies. The first of them Rc.No. 55638/87 S.W. dated 3-8-87 referred to enhancement of membership of Primary Agricultural Credit Co-operative Societies 'from 70,00,000 to 1,11,00,000 in the period immediately preceding the recently concluded elections'. That was the period during which official persons were in charge of the affairs of the Primary Agricultural Co-operative Societies. The Registrar directed the officers to require the Managing Committees to remove ineligible/bogus members, failing which, the District Co-operative Officers were required to complete action within four months. The second is a proceedings dried 8-7-1990 to the effect that out of 101.85 lakhs of total members 100.78 lakhs were verified and only 1.07 lakhs remained to be verified till the end of May, 1990. That also discloses that only 82,753 members out of 100.78 lakhs were found ineligible, and 76,485 among them were already removed leaving only 6.268 yet to be proceeded against According to the tabular statement- attached to that order, verification has been completed in 18 out of 23 districts in 4483 out of 4591 Primary Agricultural Credit Societies.
133. What the proceedings which the Commissioner for Co-operation/Registrar of Co-operative Societies issued on 8-7-90 after the ordinance was promulgated and the arguments in these Writ Petitions commence, discloses is that there were ineligible persons who were enrolled as members of Primary Credit Societies upto 30-6-1987 when the officials were persons-in-charge of those Societies and that during the period from 1987 to the end of May, 1990, the total number of ineligible members was found to be 82,753 of whom 76,485 were already removed leaving a balance of only 6.268. Only 1.07 lakhs out of 101.85 lakhs remained to be verified. The respondent had identified the areas where ineligible members are yet to be removed as the Districts of Srikakulam, West Godavari, Krishna, Guntur, Kurnool, Mahabubnagar and R.R. Districts. I see considerable force in the submission of counsel that it was not necessary in the interests of the Societies or in public interest, to entrust their management to officials to the exclusion of elected Co-operators for the only reasons that the Co-operative department would not or could not, even about three years from 3-8-87, complete the work of eliminating bogus/ineligible members, which the departmental officers were ordered to do within four months. I do not, however propose to draw any inference against the respondent from this circumstance alone.
134. The instances of the exercise of power consequent upon promulgation of the Ordinance belies the protetations of the State that the Ordinance was not meant to confer unguided power on the Government/Registrar and their subordinates to exclude co-operators completely from the management of the Societies. I find considerable force in the submission made on behalf of the petitioners that the only object of the scheme consisting of the Ordinance, the Government orders, the circular of the Registrar and the proceedings of the subordinate officers issued soon thereafter was only to take over the administration of Co-operative Societies and to install officials to the exclusion of co-operators in-charge of management of the affairs of the Societies. In the light of the performance of the State simultaneously with the promulgation of the Ordinance of erupting into frantic activity which broke the earle silence of the midnight of 30-6-90 and the small house of the day that followed, I am not in a position to accept the submission urged by the learned Advocate General that it was not the intention of the State to exclude co-operators from the management of the Societies as a whole. Single judge precepts by performance; and the result is not very compliment to the State.
135. The counter affidavit mentions certain reasons justifying the Ordinance and the consequential actions which the Government, the Registrar and his subordinates took in pursuance thereof. I have referred to the fact that the first occasion when the proposal to conduct elections was mooted was on 11 -6-90. The counter affidavit proceeds on the basis that the Government had decided to reduce the term of office of the elected committees of management from five years to three years - 'this decision could not be implemented earlier due to the cyclone devastation. The Legislature was prorogued by the Governor with effect from 30-6-1990.' The reason to replace the elected bodies was stated to be - 'the Government had an occasion to note that there was considerable justification for the complaints by the public that there are wholesale induction of bogus members into very many societies and certain persons were acquiring vested interests in the societies. So, it was felt by the Government that raising term of the office of elected bodies under the Act was counter-productive and that the status-quo ante should be restored, so far as the term of office is concerned.'
136. The reason for introducing Section 32-A was stated to be - 'it was felt that the Bench decision casts a reflection on the officials as though their management would be deleterious to the Societies.' The reason for not continuing time-expired committees as persons-in-charge was mentioned as - 'if within those six months the ceased bodies are continued, the temptation for misuse and abuse of power and disinterestedness in the functioning will be all pervasive in the co-operative sector in its entirety.'.. 'If elections are to be conducted with the existing membership, the result cannot be a fair reflection of the will of the genuine member. Therefore, the Government decided to ensure removal of such ineligible persons before conducting elections; and to take steps to remove existing ineligible members, the minimum time required will be three months; the present elected committees have no legal right to continue in office as they have not shown much interest in removal of ineligible members for obvious reasons. Therefore, official persons-in-charge are to be appointed to remove ineligible members to manage the affairs of the Societies.'
137. I have referred to the fact that most of the petitioners have asserted that there was no instances of inflation of membership during the period when the elected committees were in office. Counsel appearing for the two apex institutions submitted that the committees of management were elected by a fixed number of affiliated member-societies and there cannot therefore be any bogus membership in the electorates of those two central societies. Counsel submitted with reference to details that there was no question of inflation of membership in the Co-operative Central Bank, West Godavari at Eluru and the Primary Co-operative Societies and that officers concerned had not issued directions to the committees of management to revoke any bogus membership. The proceedings of the Registrar of Co-operative Societies dated 8-7-1990 discloses that the membership of all 253 member societies affiliated to that bank were verified much prior to the promulgation of the Ordinance, and the department could discover only 42 out of 5,80,972 members as ineligible. They had already been removed before 31 -5-90. It was therefore asserted that the reasons for the State for not appointing the committees of management as persons-in-charge and to confine such appointments to officials only was more fanciful than real. These submissions were reiterated by Counsel for other petitioners as well.
138. I find considerable force in the submission of the petitioners that the bogey of bogus membership was introduced only to camouflage a design to take over all cooperative Societies under some pretext.
139. The anxiety to vindicate the officials of the Co-operative or other departments who were appointed as persons-in-charge may perhaps be understandable; but that cannot be a justification for the action to thwart Co-operative democracy in the State altogether. The submission of the Advocate General that Section 32(7)(a) of the Co-operative Societies Act is left in tact and the discretion of the instrumentalities thereunder is not affected adversely either by the Ordinance or the Orders issued by the State Government in G.O.Ms.Nos. 418, 419 and 420 on the same day or the circular issued by the Registrar of Co-operative Societies and the consequential orders issued by his subordinates pursuant to the directions contained in the aforesaid G.Os. have therefore to be examined more closely.
140. Counsel appearing for the Writ Petitioners in W.P.Nos. 9350, 9229, 9357, 9641, 9455, 9426, 9456, 9560, 9751, 9602 of 1990, invited our attention to the fact that even according to the Additional Counter affidavit of the respondents, the Government had ordered on 6-4-90 that elections to 11,300 Co-operative Societies falling into 7 categories should be conducted immediately. According to him the number of such Societies is actually 22,290 which forms a substantial majority of all Co-operatives in the State. He also submitted that elections had, as a matter of fact, been conducted in the Coastal Districts which were badly affected by the ravages of the cyclone. Out of 4050 Milk Producers Co-operative Societies in the State, elections are yet to be conducted only to 2134 Societies and in respect of those alone, officials are appointed as persons-in-charge. Out of ten District Milk Supply Unions, elections were recently conducted in 4 Districts - Visakhapatnam, Guntur, Ongole and Nellore. He therefore submits that it would not have been impossible for the Registrar of Co-operative Societies to conduct elections to the Board of Directors of all Co-operative Societies including the Credit Societies, Milk Co-operative Societies, Weavers Co-operative Societies etc., as in the case of seven categories of Societies, covered by G.O.Ms.No. 250 dt.6-4-1990. It is his submission that the Government deliberately dragged its feet to make out as if it was impossible to conduct elections before the expiry of the reduced term of office of the elected Committees of management. Counsel submits that the intention of the respondents was to subvert Co-operative democracy and to introduce through the backdoor persons who were rejected by the Co-operative electorates and to perpetuate bureaucratic processes in the administration of the Societies in a totally undemocratic manner.
141. I have referred to the assertion in the reply affidavit filed on behalf of the petitioners in W.P.Nos. 9350/90 and 9602/90 etc. to the effect that even in the cyclone ravaged Coastal Districts, elections to the managing Committees of various Co-operative Societies were actually conducted, without any let or hindrance even prior to 30-6-1990. In respect of over 11,300 Co-operative Societies, the Government in its order G.O.No. 250 dt.6-4-90 directed conduct or elections and G.O.No. 418 dt.30.6.90 specifically exempted those Societies from the provisions of the Ordinance. Elections to all except 2134 Milk Producers Co-operative Societies have been conducted. So were elections to 4 out of 10 district Co-operative Milk Supply Unions. It is difficult to accept the submission that only in a few of the remaining Societies, elections could not be conducted due to the reasons conjured up by the respondents. It is therefore not possible to accept the submission that it became necessary to appoint departmental officers as persons -in-charge of the Credit Societies, Milk Societies and Weavers' Societies to the exclusion of elected Committees as the elections could not be conducted because of the ravages of the cyclone or administrative problems arising therefrom.
142. I am also of the opinion that the impugned orders are invalid to the extent that in most cases, the appointing authority appointed himself either as chariman or as member of the persons-in-charge. This is best illustrated in G.O.Nos. 418 and 410. The Chairman of the persons-in-charge is none other than the Secretary to Government (Food and Agriculture Department). He has also to exeicise the powers under Sections 33, 34, 77, 123 and 131 etc. of the Act in respect of the same Committee. The very purpose of statutory supervision and control which the Government/Registrar has to exercise is nullified by appointment of the Government Secretary himself as Chairman of the persons-in-charge of the apex banks. G.O.Ms.No. 34 (Food and Agriculture Co-operation-IV) Department, dt.16-1-1989 had conferred the power of Registrar of Cooperative Societies on District Collectors, Special Cadre Deputy Registrars of Cooperative Societies, Divisional Deputy Registrars of Co-operatives etc. in respect of District level Co-operative Banks. Those very persons entrusted with supervisory powers are appointed or have appointed themselves as persons-in-charge. That is what has happened in the cases of District Co-operative Central Banks. In those cases also, the statutory control and supervision are seriously impaired, if not completely annihilated. That does not augur well for the Co-operatives since the control and supervision by one, of himself, will rather be illusory than real and only promotes authoritarianism in these basic units of economic egalitarianism.
143. I cannot escape the conclusion that the reasons mentioned for the delay for promulgation of the Ordinance till the last date 30-6-90 are too tenuous to merit acceptance. It appears to me that the delay was part of a design to scuttle the elected committees of the Co-operatives and exclude Co-operators from management. The anxiety to disable the court in passing orders directing appointment of elected but time-expired committees as persons-in-charge, the 'midnight orders' appointing officials in the stead and 'the cyclonic devastation of Co-operative democracy' in their wake atleast in some cases before the next sunrise - as emanating from the pleadings - all point a finger of suspicion at the bona fides of the respondents. I have therefore no hesitation to hold that the administrative action which followed in the wake of the Ordinance is liable to be struck down as lacking in bona fides and were meant to achieve irrelevant and oblique purposes.
I also hold that the power of the Government or the Registrar will be exercised only to advance 'the purposes of the Act' 'bona fide' and on 'relevant grounds'.
144. I further hold that in effecting such appointments to tide over any interregnum caused otherwise than due to default of the committee and till regular elections are conducted, the Government/Registrar shall ordinarily prefer the erstwhile committee of management for appointment as persons-in-charge, unless the committee as a whole of some of its members are found guilty of acts or omissions which disentitle them to be so appointed.
145. One last aspect remains that we passed orders on 3-7-1990 that status quo as at 4.15 P.M. on that day shall continue in respect of the management of the Co-operative Societies which are petitioners before us. Similar orders were passed in other Writ Petitions also subsequently. There is no dispute as to whether the officers appointed as persons-in-charge of the respective Societies had taken office as such on 3-7-1990. We find that in none of those cases, officials appointed as persons-in-charge had requested the committees of management which were in office on 30-6-90 to handover charge. Naturally therefore none objected or refused to handover charge. Hence there was no justification for assumption of charge by the officials without even the courtesy of informing their predecessors in office. It is asserted in the reply affidavit in W.P.9202/ 90 that the President of the State Co-operative Bank wrote a letter on 5-7-90 after obtaining interim orders from this court on 3-7-90 to convene a meeting of the committee, but the 2nd respondent in his letter dt 14-7-90 wrote back- to say that he had assumed charge on 2-7-90. Instances of this nature are too many. There is a complaint that such endorsements were made after we passed orders on that day. I do not propose to enter into these conflicting claims. Suffice it to say that the only manner in which persons-in-charge could have taken over management of the Society was by requesting the prior management to relinquish and handover charge and in case of refusal by resorting to Section 117 of the Co-operative Societies Act. Even if Section 117 of the Co-operative Societies Act did not apply, the officials were governed by the provisions in the Government rules/orders regarding handing over and assumption of charge, by filling up the Certificate of Transfer of charge. In these cases, even that procedure which Government Officers are expected to adhere to in cases of combination of appointments was not observed. In the context of the admitted facts on this aspect of the case, I find considerable force in the submission that respondents were eager to forestall effective interim orders by presenting a fait accombi by uncermoniously diversting the elected Committees of their office. Whether the assumption of charge was after we passed interim orders on 3-7-90 or before, I find in agreement with my learned brother Sardar Ali Khan, J., that such assumption of charge without compliance with the provisions of Section 117 of the Co-operative Societies Act or even the rules and orders applicable to Government servants, was absolutely improper and high handed. I hold that the preexisting committees are entitled to continue in office as long as charge was not formally handedover to the persons-in-charge or the latter had assumed charge in case of refusal as provided in Section 117 of the Act
146. I cannot part with this case without joining my learned brother in commending upon the light hearted way in which the legislative draftsmen functioned. The object of Section 32-A was to bar the jurisdiction of courts from entertaining any proceeding challenging the appointment of a person-in-charge by the Government or as the case may be, the Registrar and also to exclude the jurisdiction of courts in all matters relating to appointment or continuance of committees which cease to hold office as person-in-charge merely on the ground that such Committees had earlier held office. If the intention was only to bar jurisdiction of courts other than the High Court, there was already a more comprehensive provision in Section 121 of the Act, which bars jurisdiction of courts in respect of any order passed, decision or action taken or direction issued under the Act by an Arbitrator, a liquidator, the Registrar or an officer or person authorised or empowered by him, the Tribunal or the Government or any officer subordinate to them. In the light of a more comprehensive bar of jurisdiction of courts, it was not at all necessary to enact an additional Section 32-A in its present form. I am constrained to observe that it is the absolute light-heartedness with which the Ordinance was promulgated even without looking into the existing provisions including the numbering of sections in the Act, that makes it a unique exercise in legislative drafting.
147. In the result, I hold in agreement with my learned brother Sardar Ali Khan, J., that the challenge against Ordinance 5 of 1990 has to fail an 2 that the bar under Section 3 of the Ordinance does not apply to the jurisdiction of this court under Article 226 or of the Supreme Court under Article 32 of the Constitution of India. The Writ Petitions are allowed to the extent of striking down the Government Orders mentioned above viz., G.O.Ms.Nos. 418, 419 and 420, dt.30-6-1990, the proceedings of the Registrar of the Co-operative Societies in Rc.No. 50493/90Cr.l (b), dt.30-6-90, and the consequential orders passed by the subordinate officers in pursuance thereto.