S RATHNAKUMAR Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) IN all these writ petitions, G. O. Ms. No. 160, Animal husbandry and Fisheries (M. P. II) Department, dated 27. 9. 1996 issued by the state Government in the purported exercise of its power under Sec. 170 of the tamil Nadu Co-operative Societies Act (hereinafter referred to as' the act' )is challenged. The said G. O. reads thus: GOVERNMENT OF TAMIL NADU ABSTRACT Dairy Development Milk Producers Co-operative Societies -Eligibility of Member of Vote at/or stand for election - orders-issued. ----- ANIMAL HUSBANDRY & FISHERIES (MP. II) DEPARTMENT G. O. Ms. No. 160 Dated 27. 9. 1996. Read: 1. G. O. Ms. No. 226, Animal Husbandry & Fisheries department, dated 26. 4. 1990. 2. G. O. Ms. No. 477, Animal Husbandry & Fisheries department, dated 10. 9. 1990. 3. G. O. Ms. No. 61, Cooperation, Food and Consumer protection Department, dated 12. 3. 96. ORDER IN the order second read above, Government in supersession of the orders issued in G. O. Ms. No. 226, Animal Husbandry and fisheries, dated 26. 4. 1990 have ordered that notwithstanding anything contained in the by-laws of the Primary Milk Producers' Co-operative societies, the Members who are not otherwise disqualified to vote at, or stand for, any election in accordance with the provision of the Act or the Rules thereunder and who have supplied Milk to the Society for 120 days or 300 litres during the period commencing from the date of commencement of the preceding co-operative year and ending on that date 30 days prior to the date of election shall be eligible to vote at or stand for any election to the society. 2. IN the orders third read above, Government have issued an election schedule to complete the election process to the Co-operatives since a number of representation have been received to rescind the exemption granted in the order second read above so that all the members as contemplated in Rule 51a are made eligible to vote at or stand for any election to the society. 3. Government after consideration have decided to remove the conditions imposed in the Government Order second read above. Accordingly government direct that the orders issued in the Government Order second read above shall be cancelled with effect from the date of issue of this order. The effect of this order is that all the Members of the Primary Dairy Co-operative societies, who satisfy the conditions of rule 51-A of the Tamil Nadu co-operative Societies Rules, 1988 shall be eligible to vote at or stand for any election to the society. (BY ORDER OFTHE GOVERNOR) Sd/-M. Raman Secretary of Government. "

(2.) THE contentions advanced by Sri R. Gandhi, learned senior Counsel appearing for the petitioner and also by the other learned counsel are: that the power under Sec. 170 of the Act is not available to the government to issue such a G. O. , that even if such a power is available, it has been arbitrarily exercised, that it would go against the very object for which the Milk Producers' Co-operative Societies were established, that no member, who does not supply milk to the Milk Producers Co-operative society of which he is a member, can be eligible to vote, that the by-law 5 (i) (a) of the by-laws which are common to all the Milk Producers' Co-operative Societies in the State does not permit a member who has not supplied milk of certain quantity or for certain period to the co-operative society to exercise his right to vote and therefore, the State Government has acted arbitrarily in issuing the impugned Government Order. On the contrary, it is the contention of the learned Special Government Pleader for Co-operative societies that Sec. 170 of the Act empowers the State Government to issue the impugned G. O. , that as per the provisions of the Act contained in Secs. 2 (17), 11 (3), 23 (1) (h) read with 23 (2) (g) and 26 (1) (c) of the Act and Rules 9, 51 and 51-A of the Tamil Nadu Co-operative Societies Rules, 1988 (hereinafter referred to as'therules'), there cannot be any such disqualification as contained in by-law No. 5 as long as a member is eligible to be admitted as a member and to be continued as a member and does not suffer any disqualification. It is also submitted that in 15 Milk Producers' Co-operative Societies, there were only less than ten members eligible accordingly to G. O. No. 477, dated 10. 9. 1990, even though the membership of those so- cieties was more than hundred, in some cases it was more than 400 and in one case it was more than 1000. It is submitted that Kovai Town MPCS had 1044 members but there would be no eligble voters if ihe criteria of G. O. Ms. No. 477 dated 10. 9. 1990 were to be applied. A chart is given in this regard, which will be adverted to in the course of the judgment. THErefore, it is submitted by the learned Government Pleader that the exercise of the power by the Stale Government is bona fide in order to enable the members of the Milk Producers' Co-operative societies to exercise their right to vote, which they are entitled having regard to the provisions of the Act and the Rules. In the light of these contentions, the points that arise for consideration are as follows: 1. Whether G. O. Ms. No. 160, dated 27-9-1996 can be held to be ultra vires the power of the State Government" 2. Whether the By-law can be contrary to the provisions of the Act and the Rules"

(3.) WE may at this stage point out that Rule 9 of the rules, which deals with the by-laws also specifically provides that every amendment of by-laws shall be made only by a resolution passed by a majority of the members present and voting at a meeting of the general body for which notice of amendment of by- laws has been given in accordance with the rule and the by-laws. The by-laws with which we are concerned are in Tamil. A true translation of the same has been furnished by Sri R. Gandhi, learned senior counsel appearing for some of the petitioners, which reads thus: ' Bye-law: 5 (i) (a): Any person who is residing in the area within the jurisdiction of the society, who is above 18 years of age, who is competent to enter into a contract, who is a genuine milk producer, who undertakes to sell the milk produced by him through the society, is eligible to become a member. (b) The application for becoming a member is to be approved by the Board of Directors of the Society. (Rejection of applications should strictly be under the provisions of the Co-operative Societies Act.) (c) The person should not be a milk vendor or a vendor of milk products. (ii) Any member who had supplied less than 300 litres of milk or supplied milk for less than 120 days in the preceding Co-operative year, will not be entitled to any rights, other than pecuniary rights such as bonus, dividend, etc.' By-law 5 (i) (a) specifically provides that a person to be eligible to become a member of the society must be residing within the jurisdiction of the society, must be above 18 years of age, competent to enter into contract and must be a genuine milk producer who undertakes to sell the milk produced by him through the society. By-law 5 (ii) further provides that any member who had supplied less than 300 litres of milk or supplied milk for less than 120 days in the preceding co-operative year, will not be entitled to any right other than pecuniary rights such as bonus, dividend etc. , Based on this by-law 5 (ii), it is contended that a member, who does not sell the milk to the co-operative society of the aforesaid quantity or for the aforesaid period, will not be entitled to exercise his right to vote. Of course, the conditions prescribed under by-law 5 (i) (a) are in conformity with the provisions of the act and the Rules. As far as by-law 5 (ii) is concerned, it is not possible to read that by-law as being in conformity with the provisions contained in secs. 23 (1) (1) (h), 23 (2) (g) and 26 (1) (c) of the Act and Rule 51-A of the Rules as pointed out earlier.