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PETITIONER: S.K. PARAMASIVAM ETC.

       Vs.

RESPONDENT: GOVERNMENT. OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       20/01/1998

BENCH: S.P. BHARUCHA, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                              With                           C.A.No.4466                          J U D G M E N T BHARUCHA, J.      These appeals  by special leave impugn the judgment and order of  the High  Court  at  madras  dismissing  the  writ petitions filed  by the present appellants, along with other similar writ  petitions, and giving certain directions (with which we are not immediately concerned).      For the  purposes of  appreciating  what  is  involved, certain provisions  of the Tamil Nadu Co-operative Act, 1983 and the Rules and Bye-laws made thereunder need to be cited. Section 21 of the said Act prescribed the qualifications for membership of  a co-operative  society. What  is relevant is that the  individual or  registered society  or the  body of persons referred to in items (i), (ii) and iv) thereof shall posses such  further qualifications  as may  be specified in the  Rules   or  the  Bye-laws.  Section  23  sets  out  the disqualifications for  membership of a society. Among hem is the following:      "does     not      possess      the      qualification,  with  reference  to      the   principle   object   of   the      society, proscribed  the  rules  or      the bye-laws".      Section 26  related to the votes of members, Under sub- section (1)  clause (a)  there of, no member of a registered society shall  have more  than one vote in the afraid of the society, and clause @ reads thus:      "@ Save as otherwise provided under      this Act  and the  rules, no member      of a  registered society  shall  be      derived of his right to vote in the      election  of  the  members  of  the      board of such society." Section 170  empowers the  State Government,  in the  public interest, by  general or special order whether prospectively or retrospectively,  to exempt  any registered  society from any of  the provisions  of the  Act (except  some provisions with which  we are  not here  concerned) or  of  the  Rules,

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subject to  such conditions  as may be specified. Rule 14 of the Rules  made under  the Act  empowers  the  Registrar  to classify and  categorize societies  into the classes therein mentioned, according to the principal object provided in the bye-laws  thereof.   The  6th  class  thereunder  is  "Dairy Society" and  this class  has  5  categories,  namely,  Milk Producers  Society,  Milk  Consumers  Society,  Milk  Supply Society, Milk Supply Union and Dairy Farm. Rule 51A provides for the  eligibility of  members to  vote at,  or stand for, elections. It reads thus:      "Notwithstanding anything contained      in the  bye-laws of  a society, the      members  who   are  not   otherwise      disqualified to  vote at,  or stand      for, any election n accordance with      the provisions  of the Act or these      rules, shall  be eligible  to  vote      at, or  stand for,  any election to      the society." Bye-law 5,  specifically applicable  to Milk  Producers  Co- operative Societies,  upon which  reliance is  placed by the appellants, reads thus:      "Bye-law 5(1)  (a). Any  person who      is residing  in the area within the      jurisdiction of  the Society, wh 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 of  wrecking a      member is  to be  approved  by  the      Board of  Directors of the Society.      (Rejection of  applications  should      strictly be  under the provisions f      the Co-operative Societies Act).      @ The  person should  not be a milk      vendor  or   a   vendor   of   milk      products.      (ii) Any  member who  had  supplied      less than  300 liters  of  milk  or      supplied milk  for  less  than  120      days in  the preceding co-operative      years, will  not be entitled to any      rights, other than pecuniary rights      such as bonus, dividend, etc."      On 26th  April, 1990,  the State  Government  issued  a Government Order which provided that for participating in an election to  a Milk Producers Co-operative Society, a member should have suppled  minimum quantity of 300 liters of milk, or should  have supplied  milk for  a minimum  period of 120 days, in  the previous co-operative year. On 10th September, 1990, another  Government Order was issued. The earlier G.O. was referred  to therein as having been issued to exempt all Milk Producers  Co-operative Societies  from  the provisions of Rule  51A. The  later order  amended the earlier order so that what was now provided read:      "Notwithstanding anything contained      in the bye-laws of the Primary Milk      Producers’  Co-operative   Society,      the members  who are  no  otherwise      disqualified to  vote at,  or stand

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    for,  any  election  in  accordance      with the  provisions of  the Act or      the rules,  thereunder and who have      suppled milk to the society for 120      days  or   300  liters  during  the      period commencing  from the date of      commencement of  the preceding  co-      operative year  and ending  on  the      date 30  days prior  to the date of      election shall  be eligible to vote      at or  stand for,  any election  to      the society." On 27th  September, 1966,  G.O.Ms.166, which was impugned in the writ petitions, was issued. It read thus:      "ORDER :      In  the  order  second  red  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 bye-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  liters during the      period commencing  from the date of      commencement of  the preceding  Co-      operative Year  and ending  on that      date 3  days prior  to the  date of      election shall  be eligible to vote      at or  stand for a  election to the      society.      2. In  the order  third red  above,      Government have  issued an election      schedule to  complete the  election      process to the Co-operative since a      number of  representation have  ben      received to  rescind the  exemption      grant in the order second red 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    order      second   read    above   shall   be      concealed 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  51A 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 OF  THE      GOVERNOR).

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                Sd./-                 M.RAMAN        Secretary to Government."      It was  contended on  behalf  of  the  appellants  that Section 21 had to be read with Bye-law 5 so that, to vote at an election,  a member  must have supplied not less than 300 liters of  milk or  supplied  milk  for  120  days,  in  the preceding  co-operative   year  and   that,  therefore,  the impugned Government  Order was  contrary to the requirements and had in law.      We are  here concerned  with the  right of  persons  or pates who  are already  members to vote. It is Section 26 of the Act  and Rule  51A of the Rules which are relevant. Sub- section (1), clause @ of Section 26 states that no member of a registered  society shall  be deprived of is right to vote in the  election of the member of the board of such society, "save as  otherwise provided  under this  Act". To deprive a member of  his right  to vote,  therefore, the Act has to be looked at  and no  provision of the Act has been pointed out by reason  of which  a member can be deprived of is right to vote. Rule 51A states that all members of a society shall be eligible to vote at an election to the society, unless there wise disqualified. it is not the case of the appellants that any disqualification  attaches to  certain members,  for the provisions  the   appellants  rely  upon  do  not  prescribe conditions  which  disqualify  members  from  voting.  These provisions,  namely,   Section  21   and  bye-law   5,  deal principally,  with   qualification  for   the  purposes   of membership and cannot be determinative of the right of those who are already members to vote. Sub-clause (2) of bye-law 5 speaks if general terms of "any rights, other than pecuniary rights", it  is difficult  to read this general provision in the by-laws  as  prevailing  over  the  specific  provisions dealing with  the right  members to  vote in the Act and the Rules made thereunder.      The earlier G.O.Ms. were issued under the provisions of Section 170  of the  Act, which has been quoted above. There is   nothing which prevents the State Government in law from issuing  the   impugned  Government   Order  Rescinding  the exemption that was given earlier.      It was  contended that  a letter  of understanding  had been signed  by the  State Government and the national Dairy Development board on 3rd march, 1988, by reason of which the earlier Government orders had been issued, that the impugned Government order  was contrary  to that  understanding, that the said  board had  informed that State Government that its decision to  issue the  impugned Government  order would  be detrimental to  the interests of milk producers and set back to the  operation Flood programme in the State, and that the said board,  which was  a party  respondent in  some of  the other writ  petitions, had  filed an  affidavit in support f the writ  petitions. The  breach of  understanding, if  any, between the  said board and the State Government is a matter for the said board to take up and cannot furnish a ground to the appellants.      The appeals are dismissed, no order as to costs.