Andhra HC (Pre-Telangana)
G. Srinivas vs Ch. Bala Raju And Ors. on 26 August, 2003
Equivalent citations: 2003(6)ALD888, 2003(6)ALT733
ORDER D.S.R. Varma, J.
1. With the consent of both the parties, the main writ petition itself is taken up for hearing and disposed of along with the Contempt case by this common order.
2. W.P. No. 22553 of 2002 is filed seeking a writ of mandamus declaring the proceedings in Rc.No. 963/2000/A, dated 18-10-2002, issued by the 2nd respondent, as illegal, arbitrary and contrary to the provisions of the Andhra Pradesh Cooperative Societies Act, 1964 (for short "the Act") and Rules made thereunder.
3. The complaint of the petitioner in the present Contempt Case No. 916 of 2003 is that the respondent has not complied with the order, dated 29-1-2002, in W.P.M.P. No. 28300 of 2002 in W.P. No. 22553 of 2002, passed by this Court.
4. The impugned proceedings, dated 18-10-2002, whereby and whereunder the 2nd respondent, while exercising his jurisdiction under Section 32(7)(a) of the Act, has appointed a Chairman to the persons-in-charge committee of 3rd respondent-Primary Agricultural Cooperative Society, Narsampally, Mulugu Mandal, Medak District (for short "the Society").
5. The undisputed facts are that the petitioner was the erstwhile President of the Society. He was an elected person. There was a committee also. Subsequently, by efflux of time, the competent authority appointed a committee of persons-in-charge. However, as per the policy of the Government, the erstwhile President and the other members of the committee were considered to be appointed as persons-in-charge, as they are found eligible and not attached with any disqualification. Such committee of persons-in-charge was appointed only for a specified period. In the instant case, the petitioner and the other members of the committee were appointed as persons-in-charge and the term of the said committee was extended from time to time. In that process, the term of the petitioner along with the other members of the committee of persons-in- charge was to expire by 26-1-2003. By virtue of the impugned proceedings, dated 18-10-2002, after the expiration of the said period, one Mr.Ramireddy was appointed as Chairman of the committee of persons-in-charge. The ground, as could be seen from the impugned proceedings, for termination of the petitioner as Chairman of the committee of persons-in-charge appears to be that he had drawn suspense amount in the Society without any valid reasons and misused the property of the society for his personal gain and thereby attracted disqualification as provided under Section 21-AA(1)(2) of the Act and as such he ceased to be the Chairman of the committee of persons-in-charge. It appears that surcharge proceedings have been initiated against the petitioner and the same have been challenged before the Co-operative Tribunal (for short "the Tribunal") and the Tribunal had granted interim suspension of the operation of the said surcharge proceedings. However, on the ground that the surcharge proceedings are pending, the present impugned proceedings, dated 18-10-2002, came to be passed by the 2nd respondent. Hence, the writ petition.
6. Sri A. Satya Prasad, the learned Counsel for the petitioner, contends that when the surcharge proceedings initiated against the petitioner were suspended by the Tribunal, it is not proper for the 2nd respondent to pass the impugned proceedings. It is his further contention that the 2nd respondent cannot invoke the provisions of Section 32(7)(a) of the Act and the same is without jurisdiction and that the provisions of Section 32(7)(a) of the Act can be invoked by the Registrar only when the Committee was found to be not functioning properly. He nextly contended that the Registrar instead of invoking the provisions of Section 32(7)(a) of the Act ought to have invoked the jurisdiction conferred upon him under Section 34 of the Act. In which case, according to him, the Committee would have been given an opportunity of making a representation and in order to deny such valuable opportunity, the jurisdiction under Section 32(7)(a) was invoked and hence the impugned proceedings are bad in law.
7. Smt. Vijayalakshmi, the learned Government Pleader for Co-operation, repelling the contentions of the learned Counsel for the petitioner, contends that even according to the impugned proceedings, it is clear that the term of the committee, in fact, had expired by 26-1-2003. She further contends that when the petitioner was found to have been suffering from a disqualification under Section 21-AA(1)(b) of the Act, it is totally within the jurisdiction of the Registrar to invoke the provisions of Section 32. In support of her contentions, she relied on a judgment of a Division Bench of this Court in Elakolanu Primary Agricultural Co-operative Credit Society Ltd. v. Government of A.P., 2002 Suppl. (1) ALD 352 (DB).
8. At this juncture itself, it is to be noted that in the case referred to above also the Tribunal had suspended the surcharge proceedings impugned therein and in spite of which a Division Bench of this Court held that under Section 32(7)(a) of the Act, the Registrar can exercise his jurisdiction and that there is no vested right as such for the Committee of persons-in-charge.
9. In this context, it is necessary to notice the reasoning given by the 2nd respondent in passing the impugned order, dated 18-10-2002, for ready reference, which is as under:
"In view of the above irregularities committed by him and also disqualifications acquired by him as such he is ineligible to be continued as Chairman, PIC Committee of PACS, Narsampally. Hence, he was replaced with the Vice-President of the Society."
10. From the above, it could be seen that the 2nd respondent had assigned two reasons to appoint one Sri M. Ramireddy, as Chairman of Persons-in-charge Committee of the Society; firstly that by irregularities committed by the petitioner, and secondly the disqualification attached to the petitioner under Section 21AA(1)(b) of the Act.
11. Having regard to the above said contentions of both sides, it is to be noted that the impugned proceedings were passed mainly on the ground that certain irregularities were found to have been committed by the petitioner and surcharge proceedings have been initiated and they are pending. By virtue of the pendency of the surcharge proceedings, the case of the petitioner squarely falls within the ambit of Section 21AA(1)(b) of the Act, which provides for disqualification of the President.
12. In this connection, it is apposite to notice the provisions of Section 21-AA(1)(b), to the extent they are relevant for the purpose of this case, which run thus:
21-AA. Cessation of Membership of Committee :--(1) A member of the committee shall cease to hold office forthwith as such, for the residue of his term of office and the shall also be ineligible for being chosen as or for being a member of the committee through election or co-option for the subsequent two terms if,--
(a) ......
(b) on an enquiry under this Act he is found guilty of misuse of the property of the Society for his personal gain.
13. It is on record that the surcharge proceedings for the alleged irregularities committed by the petitioner have been made subject-matter of appeal before the Tribunal by way of an appeal and the Tribunal had suspended the said surcharge proceedings through interim order, dated 5-5-2000, the said appeal is still pending adjudication before the Tribunal.
14. In this regard, it is to be further noted that the suspension of the said surcharge proceedings, in my view, cannot be termed as final. The effect of it would still remain.
15. Here suspension of the surcharge proceedings, pending adjudication of the appeal, does not automatically absolve the petitioner from the charges leveled against him. It is only the operation of the surcharge proceedings that was suspended. In other words, the said surcharge proceedings are intact and remain on record till the appeal was finally decided in favour of the petitioner by exonerating him. So long as such final decision is arrived at by the Tribunal in favour of the petitioner, the disqualification attached to him would still be alive.
16. Therefore, the contention of the learned Counsel for the petitioner that inasmuch as the surcharge proceedings were pending adjudication before the Tribunal and the same were suspended, the Registrar has no jurisdiction to pass any order, particularly invoking the jurisdiction under Section 32(7)(a) of the Act, cannot be accepted.
17. Coming to the next contention of the learned Counsel for the petitioner that the 2nd respondent ought not have invoked the provisions of Section 32 of the Act is concerned, it is to be seen that Section 32(7)(a) and (b) postulates as under:
"Sub-section 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 three years.
Sub-section (7)(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."
18. From the above, it is clear that if in the opinion of the Government or the Registrar, as the case may be, it is not possible to conduct a general meeting for the purpose of conducting election of members of the committee, a person to manage the affairs of the Society may be appointed, for a prescribed period.
19. In this context, it is to be further seen that a duty is cast upon the President or the Chairman of the committee of persons-in-charge under Sub-section (3) of Section 32 of the Act to call for the committee meetings or the general meetings. When such a President or the Chairman of the committee of persons-in-charge is not there, it would practically be impossible to conduct any committee meetings or the general meetings.
20. In the instant case, when the Chairman has been removed from the office because of disqualification attached to him under Section-21-AA (1) (c) of the Act, virtually there will not be anybody to call for the committee meetings or the general meetings to manage the affairs of the Society and by virtue of the absence of the petitioner as Chairman of the committee of persons-in-charge, virtually there will be a vacuum. It is obvious that by virtue of termination of the petitioner, from the Chairmanship of the committee of persons-in-charge, the natural corollary is that the convening the statutory meetings would become impossible, virtually bringing the day-to-day affairs and management of the Society to a grinding halt.
21. The other contention of the learned Counsel for the petitioner is that instead of invoking the provisions of Section 32(7)(a) of the Act, the 2nd respondent ought to have invoked the provisions of Section 34 whereunder the petitioner could have an opportunity of making a representation.
22. Section 34, which deals with the supersession of the committee, to the extent relevant reads as under:
"(1) If in the opinion of the Registrar, the committee is not functioning properly or willfully disobeys or fails to comply willfully with any lawful order or direction issued by the Registrar under this Act or the rules, he may, after giving the committee an opportunity of making its representation, by order supersede the committee from a specified date; and appoint either a person (hereinafter referred to as the special officer) or a committee of two or more persons (hereinafter referred to as the managing committee) to manage the affairs of the Society for a period not exceeding two years, specified in the order which period, may, at the discretion of the Registrar, be extended from time to time, so however, that the aggregate period shall not exceed three years."
23. The above provision again makes it clear that if the Registrar is of the opinion that the committee is not functioning properly or willfully disobeying the orders or directions of the Registrar under the Act, after giving the committee an opportunity of making its representation, by order supersede the committee from a specified date and appoint a fresh committee.
24. From a combined reading of Sub-section 7(a) of Section 32 and Section 34 of the Act, it is clear that the powers of the Registrar are extensive and multifarious. The circumstances under which the jurisdiction of Section 32(7)(a) can be invoked are different from the circumstances under Section 34 of the Act.
25. The significant aspect to be noted is that operation of Section 21-AA of the Act is not available to the Registrar in order to invoke the jurisdiction under Section 34 of the Act.
26. As already pointed out, the attachment of disqualification to the petitioner under Section 21AA(1)(b) of the Act, at any stretch of imagination, be a ground to exercise the jurisdiction under Section 34 of the Act to supersede the Committee of persons-in-charge of the society. Similarly, the other grounds assigned, in the impugned proceedings, to appoint a Chairman to the persons-in-charge Committee of the society, may not, in stricto senso be available to the Registrar under Section 32(7)(a) of the Act. Nevertheless, the specific reason regarding disqualification, since had been made explicit in the impugned proceedings; the only course open for the Registrar is to exercise the jurisdiction under Section 32(7)(a) of the Act. Even otherwise, the powers of the Registrar under Section 32(7)(a) of the Act being extensive, there is no palpable irregularity in the action of the Registrar in passing the impugned proceedings.
27. This aspect can be viewed from a different dimension. Though it appears that the powers under Section 32(7)(a) and Section 34 of the Act can be invoked under different circumstances, a careful reading of these provisions would make it clear that there are certain overlapping circumstances in order to invoke either of these two provisions. The commonality in both these provisions is the satisfaction of the Registrar and of course in different circumstances. The other common aspect is the proper functioning of the Society. Again 'proper functioning' would include the functioning of the Society managed by the committee of persons-in-charge.
28. To put it in a different way, Section 32(7)(a) of the Act is exercisable under compelling circumstances and whereas invocation of Section 34 of the Act being penal in nature, optional. So, ultimately it is the wisdom of the Registrar to invoke either Section 32(7)(a) of the Act or Section 34 of the Act depending upon the circumstances when the Society is felt as not functioning properly before resorting to the appointment of persons-in-charge, to manage the affairs of the Society in both the cases.
29. A Division Bench of this Court in Elakolanu Primary Agricultural Co-operative Credit Society Ltd. v. Government of A.P., (supra), observed as under:
"A bare perusal of the aforementioned provision would clearly show that even assuming that the appellants herein do not stand disqualified, the same by itself cannot be a ground for their appointment as persons-in-charge. A writ in the nature of mandamus can be issued provided the writ petitioner establishes the existence of a legal right in himself and a corresponding legal duty in the respondent. Section 32(7) of the Act does not envisage that only the erstwhile members of the Co-operative Society would the appointed as persons-in-charge. Section 32(7) confers discretion upon the appropriate authority to appoint persons-in-charge. It is not the case of the appellants that such a discretion has been arbitrarily exercised or is abused by the respondents herein. In such a situation, we are of the opinion that in the absence of the plea of malice-in-law, the Court shall not issue any directions which run contrary to the discretionary power conferred upon the appointing authority in terms of the aforementioned clause.
In the absence of any express provision in the statute, it cannot be said that the appellants had a legal right to be appointed as persons-in-charge even if it be assumed that they were not disqualified."
30. However, the learned Government Pleader for Co-operation points out that the term of the Chairman of the office of the present committee had already expired by 26-1-2003, as originally fixed. Therefore, notwithstanding the fact that the surcharge proceedings were pending adjudication suspended by the Tribunal and that the impugned proceedings are suspended by this Court, by virtue of the fact that the term of the office of the petitioner as Chairman of the committee of persons-in-charge had already expired by 26-1-2003, nothing would remain in this writ petition for adjudication. I do not find any merit in the writ petition and the same is liable to be dismissed.
31. For the foregoing discussion and having regard to the observations made by the Division Bench of this Court in the judgment referred to supra and also as held by me in the order, dated 16-7-2003, in W.P. No. 8911 of 2003, the contentions of the learned Counsel for the petitioner do not find any merit and I hold that the 2nd respondent is absolutely lawful in invoking the jurisdiction under Section 32(7)(a) of the Act while passing the impugned proceedings, and consequently the impugned proceedings, dated 18-3-2003, in fact, does not warrant any interference from this Court.
32. In the result, the writ petition is dismissed. However, there shall be no order as to costs.
33. The order of interim suspension granted by this Court in WPMP No. 28300 of 2003, dated 29-11-2002, is hereby vacated.
34. In view of the dismissal of the main writ petition itself, the Contempt Case is closed at the stage of admission.