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2024 Supreme(Online)(TEL) 23180
HIGH COURT OF TELANGANA
MOUSHUMI BHATTACHARYA, J
P. Srinivas Rao – Appellant
Versus
Alladi Ramesh – Respondent
CRP/2548/2024
The burden of proof in disqualification cases under the Telangana Co-operative Societies Act lies with the party asserting the disqualification, not the respondent, and the Tribunal erred in shifting this burden.
Headnote:(A) The Telangana Co-operative Societies Act, 1964 - Sections 21-A (1-A) and 61 (3) and (4) - The Indian Evidence Act, 1872 - Sections 101 and 102 - Disqualification of committee members based on the number of children - The court clarified the onus of proof lies with the party asserting disqualification under the Act, and the Tribunal erred in shifting this burden. (Paras 6, 8, 12, 14)
(B) Tribunal's authority - The Tribunal's direction for the petitioner to lead evidence was found untenable as it did not align with the statutory provisions regarding burden of proof. (Paras 10, 13)
Facts of the case:
The petitioner challenged the Tribunal's order disqualifying him based on having three children, asserting that the Tribunal incorrectly placed the burden of proof on him regarding his family details.
Findings of Court:
The court found that the Tribunal's order was erroneous in shifting the burden of proof and thus set aside the impugned order.
Issues: Whether the Tribunal erred in directing the petitioner to lead evidence regarding his family details under the provisions of the Co-operative Societies Act and the Evidence Act.
Ratio Decidendi: The court held that the burden of proof lies with the party asserting disqualification, and the Tribunal's direction was not tenable as it contradicted the statutory provisions.
Result: The impugned order was set aside and the Tribunal was directed to expedite the hearing of the original petition.
ORDER :
The Civil Revision Petition (C.R.P.) arises out of an order dated 07.03.2024 passed by the District Judge/Chairman of the Telangana Co-operative Tribunal at Warangal.
2. The impugned order was passed suo motu by the Court on a petition filed by the respondent No.1 under section 61 (3) and (4) of The Telangana Co-operative Societies Act, 1964.
3. The contention of the respondent No.1, who was the petitioner before the Tribunal, was that the petitioner herein should be disqualified under section 21-A (1-A) of the 1964 Act on the ground of the petitioner having 3 children. The petitioner (the respondent No.1 in the O.P.) denied this contention.
4. The statutory position needs to be clarified before I proceed any further with the rival contentions made by learned counsel appearing for the parties.
5. Section 21-A of the 1964 Act provides for disqualification for membership of committee as defined in section 2(b) of the 1964 Act i.e, the governing body of a Co-operative Society which controls the management of the affairs of a Society. Society has been defined in section 2(p) of the 1964 Act to mean a Co-operative Society registered/deemed to have been registered under the 1964 Act.
6. Section 21-A (1-A) of the 1964 Act was inserted into the Act with effect from 02.01.1995 and stipulates that a person having more than 2 children shall be disqualified for election or for continuing as a member of the Committee.
7. The first proviso to section 21-A (1-A) of the 1964 Act further stipulates that if an additional child is born within 1 year from commencement of The Andhra Pradesh Co-operative Societies (amendment) Act, 1995 i.e., between 02.01.1995 and 01.01.1996, the additional child shall not be taken into consideration for the purposes of disqualification under section 21-A (1-A) of the 1964 Act.
8. The question here is not whether the petitioner should have been disqualified under the above provisions but whether the Tribunal erred in passing the docket order dated 07.03.2024 and directing that the petitioner (the respondent No.1 before the Tribunal) should lead evidence and depose as to the particulars of his wife and children and other details. The Tribunal took into account section 102 of The Indian Evidence Act, 1872.
9. I have heard learned counsel appearing for the parties.
10. Section 101 of the 1872 Act lays down the sequence of giving the evidence and provides that he who asserts must prove certain facts exist and section 102 of the 1872 Act puts the onus i.e., the burden of proof on the person who would fail if no evidence were to be given on either side.
11. In the present case, section 102 of the 1872 Act puts the onus on the respondent No.1 before this Court i.e., the petitioner before the Tribunal since absence of the evidence given by the parties would result in direct prejudice to the petitioner before the Tribunal i.e., have a prejudicial bearing on the O.P.
12. Therefore, the reasoning of the Tribunal to put the onus on the petitioner (the respondent No.1 in the Tribunal) to lead evidence is not tenable.
13. Second, even if section 101 of the 1872 Act was to apply, the onus will still be on the respondent No.1 herein (the petitioner before the Tribunal) since the respondent No.1 has not been able to show any assertion made by the petitioner in the counter filed to the O.P. The Court could have understood a direction given to the petitioner to lead evidence first if the petitioner had made an assertion contrary to any statement made in the O.P.
14. The above reasons persuade this Court to set aside the impugned order.
15. Since the subject matter of the O.P. relates to an election conducted in December, 2022 with a term of 5 years which will be ending in December, 2027, the Tribunal is directed to expedite the hearing of the O.P. and make its efforts to conclude the same within a reasonable period of time, preferably within 31.01.2025.
16. C.R.P.No.2548 of 2024 is accordingly disposed of.
Interim orders, if any, shall sta
