Andhra HC (Pre-Telangana)
Toddy Tappers Co-Operative Society vs Govt. Of A.P. And Others on 29 December, 1997
Equivalent citations: 1999(5)ALD313
Author: Bilal Nazki
Bench: Bilal Nazki
ORDER
1. Rule Nisi.
2. These two writ petitions are interconnected and they are decided by a common order.
3. The petitioner-society in WP No. 25825/97 is a registered Co-operative Society and this petition has been filed by the Society through its Chief Promoter. It is submitted that on 30th of September, 1994 the Society was registered in terms of A.P. Co-operative Societies Act and the licences in respect of the petitioner-society for 6 Toddy shops had been granted. The shops are (1) Nallakunta Phoolbagh, (2) Amberpet No.1 (3) Amberpet No.2, (4) Jamal Basti, (5) Patelnagar, and (6) Turabnagar. The licence has been granted for all these shops for a period of 5 years from 1-10-1996. It is further stated that there are 315 registered members in total in the petitioner society and ration is 31,000 and the rental is Rs.9,31,000/-. It is stated that, 3rd respondent issued a notice dated 1-10-1996 which was served on the petitioner on 10-10-1996. It directed the managing committee of the petitioner society to convene a general body meeting and to pass a resolution splitting the TCS Nallakunta Phoolbagh into 3 groups on or before 15-10-1996. In case of failure of passing a resolution as directed, it was stated that action will be initiated under Section 15 of the A.P. Co-operative Societies Act. It is further stated that the majority of members of the petitioner society opposed to the split or bifurcation of the existing society. Therefore, no meeting of General body was conducted. It is further stated that, subsequently a State managed General Body Resolution has been obtained in the presence of the elders of the Gowda Sangham on 8-12-1996 and signatures of the members of the petitioner society obtained under threat of cancellation of registration and licences to split 3 groups or in the alternative 6 groups suggesting that Sri Vcera Swamy Goud should function as President of the TCS Nallakunta Phoolbagh by the Excise authorities. OIn the basis of the resolution dated 8-12-1996, which is termed by the petitioners as unauthorised, the third respondent passed an order on 17th January, 1997 dividing the petitioner-society into 6 individual Toddy groups consisting of one shop each under Section 12 of the A.P. Co-operative Societies Act. The petitioner and certain other members of the society filed Writ Petitions No.743/97 and 2021/97 before this Court challenging the order dated 17-1-1997. The Court was pleased to stay the operation of the order. The writ petitions were disposed of by the Court on 2nd May, 1997 finally. The petitioners were directed to file a revision petition before the Government under Section 77 of the A.P. Co-operative Societies Act. The Government was directed to entertain the revision and dispose of the same on merits. Status-quo was directed to be maintained for a period of one month. The petitioner states that, he filed revision through his Counsel on 19-5-1997 challenging the order dated 17-1-1997. The Government, while admitting the revision granted stay of orders under revision. The petitioner further states that, after entertaining the revision and passing the Stay orders the Government passed an order in G.O.Rt.No.1655, Revenue (Excise.II) Department, dated 29-9-1997 dismissing the revision petition filed by the petitioner and also of other members confirming the order of 3rd respondent dated 17-1-1997. Now, the order dated 29-9-1997 by which the revision was dismissed and the earlier order dated 17-1-1997 have been challenged in this writ petition.
4. The Writ petition No.29759 of 1997 has been filed by 10 persons who also claim to be members of the Nallakunta Phoolbagh Toddy Co-operative Society. They have also challenged the orders dated 17-1-1997 and 29-9-1997. Therefore, both these petitions are being taken up together for orders.
5. Impleading petitions have been filed in both the petitions by different persons. These petitions are allowed and I have heard the learned Counsels appearing for the intervenors also. Counter has also been filed. This Court while entertaining these petitions ordered status quo and the order of status quo has been sought to be vacated by way of application for vacation of orders of status quo. Although these applications were listed along with these petitions, the learned Counsel for the parties agreed that the matter be decided finally. Therefore, the learned Counsel or the parties were heard in detail.
6. The only attack to the order passed by the Government in revision which was agitated before me was that the revision had been decided without hearing the writ petitioners who were the petitioners in the revision also. It has not been denied that when final order is passed in the revision by the Government the petitioners were not heard. On the other hand, the Counsel appearing for the respondents and the intervenors submit that it is not necessary to hear the petitioner in the revision petition before an order is passed by the revisional authority. To appreciate the argument putforth by the [earned Counsel for the parties, it is necessary to go through the provision which deals with revisions. Section 77 of the Cooperative Societies Act lays down :
"77. Revision :--(1) The Registrar may of his own motion or on application made to him, call for and of any officer subordinate to him and the Government may of their own motion or on application made to them, call for and examine the record of the Registrar, in respect of any proceeding not being a proceeding in respect of which an appeal to the Tribunal is provided by sub-section (1) of Section 76 to satisfy himself or themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision passed or order made therein; and if, in any case; it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reserved or remitted for reconsideration, he or they may pass orders accordingly :
Provided that every application to the Registrar or the Government for the exercise of the powers under this section shall be preferred within ninety days from the date on which the proceeding, decision or order to which the application relates was communicated to the applicant.
(2) No order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation.
(3) ..........
(4).........."
Sub-section (2) of Section 77 makes it clear that no order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation. The learned Counsel for respondents states that, when revision was filed before the Minister he passed an order of Stay in favour of the petitioners by which he stayed the operation of the impugned order. That shows that, an opportunity was given to the petitioners of making representation when they filed the revision, and the order of Stay was passed which was against the respondents and against the intervenors. This, in fact was passed behind their back. If at all there was any grievance, it was to the respondents and to the intervenors against whom an interim order was passed without hearing them. But, at the time of final hearing the writ petitioners deserved no hearing because they bad been heard by the concerned authority at the time of presentation of the revision. Therefore, even if it is held that a hearing was necessary, that hearing had been given to the writ petitioners at the time of presentation of the revision. It was further stated that an order which was challenged before the Minister was upheld finally. Therefore, no order was passed prejudicial to the interests of the Writ petitioners. Had the order been set aside it would be prejudicial to the respondents and intervenors. Therefore, in view of sub-section (2) of Section 77 of the A.P. Co-operative Societies Act there was no need at all for the Minister concerned to give an opportunity of making representation. It is further argued by the learned Counsel for respondents that, unlike in other laws where in revision it is laid down that before passing an order a hearing has to be given, in the Co-operative Societies Act only an opportunity of making representation is to be given and in fact the revision petition itself is sufficient opportunity of making a representation. It is stated that once an order is assailed under Section 77 before the competent authority, it is assailed through a petition and that petition in itself can be sufficient compliance of Section 77(2) of the A.P.C.S Act of giving an opportunity to the concerned person of making his representation. In this connection, my attention has been drawn to various judgments of Supreme Court. In M.P. Industries Ltd v. Union of India, , the Supreme Court was interpreting Rule 55 of Mineral Concession Rules, 1960. Rule-55 is reproduced below :
"55. Where a petition for revision is made to the Central Government under Rule 54, it may call for the record of the case form the State Government, and after considering any comments made on the petition by the State Government or other authority, as the case may be, may confirm, modify or set aside the order or pass such other order in relation thereto as the Central Government may deem just and proper :
Provided that no order shall be passed against an applicant unless he has been given an opportunity to make his representations against the comments, if any, receive from the State Government or other authorities."
Section 77 of the A.P. Co-operative Societies Act is almost identical to Rule 55 of the Mineral Concession Rules. The proviso to Rule 55 like Section 77(2) gives a right of making representation to the concerned party. While coming to the interpretation of this rule, the Supreme Court found:
"10. As regards the second contention, I do not think that the appellant is entitled as of right to a personal hearing. It is no doubt a principle of natural justice that a quasi-judicial Tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, Rule 55 of the Rules, quoted supra, recognizes the said principle and states that no order shall be made against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the Tribunal ....."
7. In another judgment i.e., C.A.T.A. Sales Co-op. Society v. A.P. Government, , the Supreme Court interpreted Section 77 of the A.P. Cooperative Societies Act itself. While dealing with the scope of Section 77 and right of representation the Supreme Court held:
"21. As mentioned earlier in the judgment the Government did not give any notice communicating to the appellant about entertainment of the application in revision preferred by the respondents. Even though the appellant had filed some representations in respect of the matter, it would not absolve the Government from giving notice to the appellant to make the representation against the claim of the respondents. The minimal requirement under Section 77(2) is a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained in Section 77(2) is that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing the grounds of complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for".
8. Applying the principle laid down in the two judgments quoted above, it becomes abundently clear that the writ petitioners were given an opportunity of making representation. In fact, they had moved the Government and they had filed a petition. After they filed a petition in writing the requirement of Section 77(2) got complied with. It was only the respondents who had to be notified and who had to be given a right to represent but not the petitioners who had been given a chance to represent. The learned Counsel for the petitioners has not been able to show a single authority which would suggest that a personal hearing of the petitioners was needed when the case was finally decided by the Minister. The Minister while deciding the revision had before him the revision which was made by way of revision by the petitioners and on the basis of which he had exercised his jurisdiction. Section 77 makes it clear that the Minister or the Registrar, as the case may be, can exercise his powers of revision either suo motto or on motion by anybody. Since in this case the revisional powers were exercised on the basis of application moved by writ petitioners, therefore, sufficient opportunity had been given to the petitioners to make a representation against the order which was impugned.
9. For these reasons, I do not find any merit in these writ petitions which are accordingly dismissed. No costs.