Vellalacheruvu Fishermen Cooperative ... vs L. Koti Reddy And Another on 17 August, 1999

[Cites 6, Cited by 0]

Andhra HC (Pre-Telangana)

Vellalacheruvu Fishermen Cooperative ... vs L. Koti Reddy And Another on 17 August, 1999

Equivalent citations: 1999(5)ALD657

ORDER

1. The issue that arises for consideration in CC No.765 of 1998 and WP Nos.34994 of 1998 being one and the same, they can be disposed of by a common order.

2. Vellalacheruvu Fishermen Cooperative Society (hereinafter referred to as 'the society') represented by its ex-President, Angalakudithi Koteswara Rao, Vellalacheruvu and Meda Anjaiah, ex-Secretary of the Society filed CC No.765 of 1998 by contending that the order of this Court dated 1-5-1998 in WP No.16419 of 1996 has been flouted by the contemnor, official part-time person-incharge and, therefore, he is liable to be punished by this Court under the provisions of Contempt of Courts Act. The order passed in Writ Petition No.16419 of 1996, dated 1-5-1998 is as hereunder:

"The petitioner-Society shall deposit in case Rs.2,00,000/- with the 3rd respondent and shall also furnish a bank guarantee for Rs.1,50,000/- in favour of the Gram Panchayat for the lease year 1996-97 within 10 days from the date of receipt of a copy of this order. He shall also furnish Bank guarantee in the name of the Registrar (Judicial), High Court of Andhra Pradesh, Hyderabad, for another sum of Rs.2,00,000/- within a period of 10 days after receipt of the order to be paid to the auction purchaser as compensation in the event the Writ Petition No.16419 of 1996 is dismissed. In the event of default, the interim order dated 14-8-1996 shall stand automatically vacated."

In fact, the above order was passed by me in modification of the earlier order passed by me on 5-8-1997 in WP MP No.20176 of 1996 in WP No.16419 of 1996 and as the time granted for giving Bank guarantee expired by that time, I have given ten days time to the Society from the date of receipt of a copy of the order to furnish bank guarantee for a sum of Rs.1,50,000/- in favour of Elchuru Gram Panchayat for the year 1996-97. In the said order, I made myself clear that under the order dated 5-8-1997 as well as the present order 1 intended to permit the Society headed by Koteswara Rao to catch the fish on the terms and conditions on which my learned brother, Justice Krishna Saran Shrivastava permitted the Society for the year 1995-96. But the contemnor i.e., Assistant Director of Fisheries, Ongole, Prakasam District, who was appointed as part-time Person-Incharge by the Government in G.O. Rt. No.287 -Animal Husbandry and Fisheries (Fish.II) Department, dated 10-6-1998, having assumed charge on 15-6-1998, in his Notice in Re. No.1157-B of 1998, dated 15-6-1998 invited quotations in sealed covers from outsiders to purchase fish to be caught from Elchuru minor irrigation tank subject to the terms and conditions mentioned therein. At the same time, the Society headed by Koteswara Rao filed WP No.16880 of 1998 questioning the orders of appointment of the contemnor as part-time Person-Incharge contrary to proposal of by the Commissioner of Fisheries in letter No.4904/ 191 of 1998, dated 5-5-1998 whereundcr the Commissioner recommended for appointment of five ex-members of the Managing Committee of the Society as persons-incharge to manage the affairs of the Society after the expiry of the elected term of office/and also the notice dated 15-6-1998 issued by the contemnor inviting quotations for sale of fish caught from the tank in question.

3. While admitting the Contempt Case, by order dated 24-6-1998 passed in CA No.695 of 1998, once again I made it clear the purported intention of my order dated 1-5-1998 in WP No.16419 of 1996 and observed that in the normal course I would have permitted Mr. Koteswara Rao and his group to catch the fish in the tank in question, but for the fact that the notice dated 15-6-1998 was questioned in a separate writ petition and as the said writ petition was coming up for hearing on 29-6-1998, I directed both the parties not to catch the fish in the tank in question including the Person- Incharge. By the time the contemnor appeared in the Court on 20-7-1998, my brother Justice S,R. Nayak dismissed a batch of writ petitions filed by the Society headed by Koteswara Rao and the details of the order passed by Justice S.R, Nayak will be dealt with, at a later point of time. In those circumstances, the Counsel for the petitioners has taken time to go through the judgment of my brother Justice S.R. Nayak. Thereafter, the Society headed by Koteswara Rao seemed to have filed writ appeals against the judgment of the learned single Judge in Writ Appeal Nos.1228, 1315 and 1317 of 1998 and the Division Bench disposed of the writ appeals by its judgment dated 10-8-1998 wherein it confirmed the order of the learned single Judge as far as the appointment of the contemnor as Person-Incharge is concerned and with regard to expulsion of members viz., Sheik Mastan and eight others, the Division Bench gave opportunity to the expelled members to apply before the Registrar of Co-operative Societies for appropriate orders and the Registrar was directed to consider the same and pass orders in accordance with law after giving opportunity to both the parties within a period of four weeks from the date of the order.

4. On 10-9-1998, when the Contempt Case came up for hearing, after hearing both the parties at length and after setting out the entire background I directed the contem nor to conduct general body meeting of the Society with the members who are on rolls on the day when elections to the Society had taken place i.e., 5-5-1994, in the presence of Advocate-Commissioner appointed by this Court to supervise the proceedings of the general body meeting. Questioning this order, about 70 persons claiming to be the members of the Society (petitioners in CA 301 of 1999) as per the orders of Assistant Director of Fisheries dated 11-11-1996 filed Contempt Appeal (SR) No.67677 of 1998 and when the matter came up for hearing they withdrew the same stating that they would like to file LPA against the said order on 25-9-1998. Thereafter, they seemed to have filed a Letters Patent Appeal and the same seemed to have come up before a Division Bench in SR stage on 25-9-1998 and their Lordships while directing the office to post the LPA by an order in CMP No.19496 of 1998 having granted leave, directed that the general body meeting shall go on, however, the decision of the meeting shall be withheld until further orders. Again, when LPA No.50 of 1999 came up for admission on 1-2-1999, they withdrew the same with permission to file an impleading application in the Contempt case pending. While permitting the appellants to file impleading application before 1-3-1999, their Lordships observed that status quo existing as on that date be maintained. Their Lordships further observed: "on filing the said application, the learned single Judge shall consider the impleading application and hear the parties on merits. All other contentions are kept open". Thereafter, on 25-2-1999 these persons filed CA No.301 of 1999 seeking permission of this Court to get themselves impleaded as respondents 2 to 7 in the contempt case and another CA No.302 of 1999 seeking vacation of the order dated 10-9-1998 in CC No.765 of 1998. Subsequently, another 48 persons filed CA No.474 of 1999 seeking permission of this Court to get themselves impleaded as petitioners in the Contempt case by contending that the Managing Committed headed by Sri A. Koteswara Rao admitting them as members of the Society from time to time.

5. In the meantime, the Advocate-Commissioner appointed by this Court, having convened the General Body meeting on 2-1-1998 submitted a report stating that as per the records available with the Person In-charge on the date when elections were conducted to the Society, i.e., on 5-5-1994, there are about 77 members and out of whom, the PPIC identified 56 persons as members of the Society. The General Body unanimously resolved that as the tank is over-flowing due to heavy rains, it is not possible to them to catch the fish at that point of time and resolved that as and when situation permits, the fish should be allowed to be caught by the members who are on the rolls of the said Co-operative Society on 5-5-1994. He has also brought to the notice of this Court that the Minutes Book produced by the PPIC seemed to have been opened on 28-7-1995.

6. On 1-4-1999, having gone through the judgment of Justice Naik, I felt that the learned Judge decided to issue purely on the legal pleas and the same runs counter to the true state of affairs existing in the Society. I have a feeling that had the learned Judge perused the records maintained by the official respondents, the judgment would have been otherwise. Be that as it may, Sheik Mastan's chapter was closed by virtue of the orders of the Commissioner in his express Memo No.4904/I.1 of 1998, dated 19-11-1998, wherein Sheik Mastan and eight others who are found ineligible in the enquiry report under Section 51 of the Act were removed from the membership of the Society. The question now to be decided in this Contempt Case is whether the implead petition filed by the persons who alleged to have been admitted by Sheik Mastan as members of the Society as per the orders of the Assistant Director dated 11-11-1996, are just and proper parties to decide the Contempt Case or not?

7. As the Contempt proceedings are purely between the Contemnor and the Court and no others have a say in the matter, I would have straight-away dismissed the implead petition filed by them. But, I am afraid that the lis will not come to an end, keeping the long history for over a decade in this case and the very claim of the implead petitioners for admission as members of the Society is pending before the Commissioner pursuant to the orders of this Court in WP MP No.21017 of 1998 in Writ Petition No.10816 of 1996, dated 16-7-1998, wherein the plea of Sri A. Koteswara Rao and others seeking permission of the Court to amend the prayer in the writ petition and in trying to question the orders of the Assistant Director, dated 11-11-1996, giving permission to Sheik Mastan to admit 72 new members, was rejected on the ground that the petitioners are having alternative comprehensive remedy under the Act by way of an appeal before the Commissioner, and also keeping in mind the reliefs sought for in Writ Petitions No.34994 and 36673 of 1998, which are still pending undisposed of, I decided to probe into the matter thoroughly, to put an end to this marathom legal battle. Hence I directed the office to post the above two writ petitions along with the Contempt Case on 7-4-1999. On subsequent dates having heard the matter to some extent, by order dated 12-7-1999, I directed the official respondents to produce the files maintained by them with regard to the affairs of the Society. Having perused the records produced by them, having served a notice on the petitioner-Society to remove Sheik Mastan from the membership of the Society, how they brought into existence parallel records maintained by Sheik Mastan and his henchmen to defeat the claims of the genuine members of the Society and to come out of the findings recorded by Justice Naik, while disposing of the batch of writ petitions by order dated 16-7-1998, I decided to examine the officers that are responsible in bringing out fabricated records in place of genuine ones of the Society only to help Sheik Mastan, and directed the Government Pleader to ensure the presence of the officers on 29-7-1999 and also directed the Commissioner not to pass any orders in the appeal filed by A. Koteswara Rao and others questioning the orders of the Assistant Director dated 11-11-1996 permitting Sheik Mastan to admit 72 new members.

8. From 29-7-1999 to 5-8-1999, I recorded the depositions of Sri O. Bhavani Shankar, Additional Director, Sri A, V. Reddy, the then Assistant Director of Fisheries, Ongole, Sri B. Thimpalaiah, the then SHO, Sri N. Hamatiantha Rao, SI of Police of Kommaalapadu, Sri L Koti Reddy, the Assistant Director who was appointed as PPIC by the Government in G.O. Ms. No.287, dated 10-6-1988 and who issued the impugned order on 15-6-1998 calling for quotations in sealed covers from outsiders to sell the fish available in the tank and Sri Angalakuditi Koteswara Rao, on the respective dates shown in their depositions. The Regional Joint Director, who also played a vital role to help Sheik Mastan, seemed to be suffering from paralysis and he did not attend Court.

9. Before deciding the issue that cropped up in this contempt case, I am inclined to consider the objections raised by Sri Satti Venkat Reddy, the senior Counsel appearing for Sri Y. Subba Reddy Counsel for the 72 persons alleged to have been admitted by Sheik Mastan, who filed an application seeking permission of the Court to come on record as respondents in the contempt case.

10. Sri Venkat Reddy strenuously contended that as the issue in controvercy has been resolved by this Court in Writ Petition No.10816 of 1996 and batch, dated 16-7-1998 by Justice S.R. Naik in favour of Sheik Mastan the same cannot be re-agitated in the contempt proceedings. In support of his contention the learned Counsel relied on a judgment of the Supreme Court in J.S. Parihar v. Ganpat Duggar and others, . In the above judgment their Lordships of the Supreme Court held that when once the Government prepares a seniority list of the employees concerned pursuant to the directions given by the Court, there arises a fresh cause of action to seek redressel in an appropriate forum, but the same cannot be considered to be a wilful violation of the order and another Judge of the High Court cannot give direction to re-draw the seniority list in contempt proceedings, and such a course is not permissible under Section 12 of the Contempt of Courts Act.

11. I have no hesitation to reject this contention as the issue that has cropped up in this contempt case is not squarely covered by the judgment of Justice S.R. Nayak. This contempt ease has been filed by Sri A. Koteswara Rao and others contending that the order of this Court dated 1-5-1998 in Writ Petition No.16419 of 1996, wherein Sri A. Koteswara Rao and others sought for a declaration that the Society is entitled to enjoy the lease-hold rights of fishing in Elcheru tank and the Gram Panchayat is bound to grant lease-hold rights of fishing in the said tank in favour of the Society, and the same do not form part of the judgment of Justice S.R. Nayak. But, the learned Judge disposed of Writ Petition No. 16680 of 1998, wherein the order of the PPIC dated 15-6-1998 was questioned by Sri A. Koteswara Rao and others. The learned Judge except stating that the impugned notice dated 15-6-1998 issued by the PPIC does not amount to a notice to part with the lease-hold rights in favour of anybody, did not record any finding that Mastan is entitled to catch the fish in the tank. At the same time, the learned Judge did not express any opinion on the alleged entitlement of the Management of the Committee headed by Sri A. Koteswara Rao, by duly observing that they are entitled to claim refund of the money by raising a dispute before the Registrar as provided under Section 61 of the Act. But the learned Judge arrived at the conclusion only on the ground that the contemnor being appointed as PPIC to manage the affairs of the Society and without looking into the orders passed either by Justice Shrivastav in WP MP No.22290 of 1995 in WV MP No.248 of 1995 in WP No.15360 of 1995 and batch dated 22-7-1996 and the orders passed by me in Writ Petition No. 16419 of 1996, wherein I made it crystal clear, after hearing the Government Pleader on the long standing disputes between the Society headed by Sri Sheik Mastan and the department on one side and the Society headed by Sri A. Koteswara Rao on the other side, that the Society headed by Sri A. Koteswara Rao alone is entitled to catch the fish in the tank. As the learned Judge did not advert to the orders passed by me, the order of the learned Judge do not come in my way in finding out whether the contemnor committed contempt of Court or not.

12. Even assuming without admitting that the judgment of Justice Naik has become final, under the said judgment Sheik Mastan is entitled to continue as President of the Society, But, the judgment cannot be stretched to the extent of urging before this Court that by virtue of the orders of Justice Naik, Sheik Mastan is entitled to run a parallel Society against the interests of the original Society by forgering the signatures of the other members of the Managing Committee of the original Society with the active help and connivance of the departmental officials.

13. In fact, these 72 persons claiming to be admitted as members of the Society by Sheik Mastan under the orders of the Assistant Director dated 11-11-1996, seemed to have tiled an application to get themselves impleaded as party respondents in WP No. 16880 of 1998 filed by Sri A. Koteswara Rao and others questioning the appointment of the Contemnor herein as PPIC by filing WP MP No.2077 of 1998 and the learned Judge while disposing of the writ petitions by a separate order dismissed this application by holding that the applicants are neither necessary nor a proper parties to decide the lis that has arisen in those writ petitions.

14. Having gone through the judgment of the learned Judge in the batch of writ petitions, as the contemnor issued the proceedings on 15-6-1998 calling for quotations in sealed covers to purchase the fish to be caught from the tank in question from outsiders, without ascertaining the views of the members of the General Body, in whom the ultimate authority of the Society is vested under Section 30 of the Act as well as bye Law No.20(3) of the bye laws of the Society, I have appointed an Advocate-Commissioner on 10-9-1998 to convene the General Body meeting of the Society with the members on roll as on 5-5-1994, i.e., the date on which the elections have taken place to the Society, on 2-10-1998 to find out the wishes of the members of the Society and report back to the Court by 12-10-1998. The members alleged to have been admitted by Sheik Mastan having failed to get my order reversed by filing a Contempt Appeal as well as LPA, now filed this application before me seeking permission to get themselves impleaded as party respondents to the contempt case.

15. Now, the two questions that fall for consideration in this contempt case are whether the contemnor violated the order dated 1-5-1998 and whether these applicants are proper and necessary parties to the contempt proceedings. As these two issues were not covered by the judgment of Justice Naik, the judgment J.S. Parihar v. Ganpat Duggar, (cited supra) by the learned Counsel do not come in my way in culling out the truth by examining the officers responsible in helping Sheik Mastan to maintain parallel records of the Society.

16. The learned Counsel cited another judgment of this Court in P. V. Ramanayya and others v. The Commissioner of Land Revenue, Ayacut Development and Commercial Taxes, Board of Revenue, A.P., Hyderabad and 4 others, 1975 (2) An.WR 390 and contended that any judgment without hearing the affected parties, is not binding on those parties and the same is void in so far as they are concerned, and the same cannot be in force against them as the order suffers from non observance of the principle Audi Alleram Partem.

17. This judgment also will not help these applicants as the evidence was recorded by the Court in their presence and gave them an opportunity to cross examine the witness and to prove that their admission as members of the Society is in accordance with law. But, they stated that they have nothing to elicit from the officers concerned in support of their claim. Hence, I fell that 1 am justified in culling out the truth by recording the depositions of the officers who have ruined the very existence of the Society and made them to fight this litigation for over a decade.

18. To decide whether these petitioners in CA No.301 of 1999 are necessary and proper parties to the contempt case, the factual back ground of the Society has to be taken into consideration. In that direction from the records of the Society, it is seen that the villian of the entire episode is the Sarpanch of Elcheru Gram Panchayat who did not allow the Society to do its business as per law. In fact Sri A. Koteswara Rao and his group impleaded the deceased Mr. G. Hanwnantha Rao, Ex-Minister in the Government and his son, who succeeded him as MLA as party respondents in various writ petitions filed by them contending that at the behest of these individuals, the officers were at the beck and call of Sheik Mastan and prepared false records to defeat the claims of them. But, both the individuals though received notices, did not choose to file counters denying the allegations made against them.

19. Now, the facts of the case are that the Society came into existence on 11-3-1989 with 77 members and its area of operation extended over Elcheru Gram Panchayat, Vellalacheruvu and its hamlet Adivipalem, and in each of the villages three minor irrigation tanks are in existence. When the Society tried to take the leasehold rights of fishing in Elchuru minor irrigation tank extending over 187 acres with a water spread area of 60 acres under G.O. Ms. No.343 dated 10-4-1978, the Sarpanch of the Gram Panchayat refused to lease out the fishing rights. In those circumstances, the Society was forced to approach this Court by filing Writ Petition No.9892 of 1989 and as per the interim direction of this Court, the fishing rights were leased out to the Society at Rs.44,000/-, price fixed by the DPO. The Society also seemed to have taken the lease-hold rights of fishing in the other two tanks.

20. Having been annoyed with the action of the Society, the Sarpanch started two pronged actions against the Society. On one side he could catch hold of the Divisional Panchayat Officer and the District Collector who started increasing the upset price for grant of lease of fishing rights by the Gram Panchayat exhorbitently without any basis for the first block period of three years, i.e., for the year 1989-92 at Rs.3,75,000/- and for the next block period 1994-97 at Rs.4,00,000/- per fasli and this Court by its judgment in Writ Petition No.5934 of 1993 and batch dated 15-7-1998 declared that both these officers did not adhere to the procedure envisaged in the statutory rules in fixing the upset price and while allowing the writ petitions, directed the Divisional Officer to fix the upset price de novo in the light of the observations made therein. On the second front, he started filing representations before the Departmental authorities alleging various commissions and omissions against the Society and sought for an enquiry into the affairs of the Society. On the basis of that representation an enquiry into the affairs of the Society seemed to have been ordered under Section 51 of the Act, by the Regional Deputy Director of Fisheries, Guntur. In the enquiry report, the Regional Deputy Director held that Sheik Mastan and 8 others being non-fishermen they became ineligible to continue as members of the Society. After completion of the enquiry, on the basis of the report of the Enquiry Officer, the Commissioner, in his Proceedings No.24064/1.3/86, dated 9-7-1993, forwarded the enquiry report and directed the Assistant Director of Fisheries to take immediate action for rectification of the defects pointed out in the report. But, for the reasons best known to the Assistant Director, he did not take action for a long time on this report.

21. In the mean time, elections to the Society were held on 5-5-1994 and nine members were elected as members of the Managing Committee. The Managing Committee in its turn elected Sheik Mastan as President of the Society, Sri A. Koteswara Rao as Vice President and Sri Meda Anjatah as Secretary of the Society on the same day, i.e., 5-5-1994.

22. While the Managing Committee headed by Sheik Mastan was managing the affairs of the Society, by Proceedings No.Rc.1617/81, dated 4-7-1995, the Assistant Director, directed the Society to remove Sheik Mastan and others from the membership of the Society to return their share capital and inform the same to his office. After receipt of these proceedings Sheik Mastan might have approached the political clout of the area and a master plan was prepared, to run a parallel Society, to keep the Society under their control with the help of Sheik Mastan by creating duplicate records for the Society. In that direction on 17-7-1995 Sheik Mastan made a representation to the Assistant Director as well as to the Police, Kommalapadu, whose true colours will come to light from the following events. In the representation Sheik Mastan stated that he got down the bus at Kommaalapadu and had been to a tea hotel to take tea, and by the time he finished taking tea, the records of the Society including the Bank Guarantee issued by Canara Bank, Kommaalapadu, kept in a bag were found to be lost. But, surprisingly, he attended the meeting of the Managing Committee on 18-7-1995, wherein the lease-hold rights of fishing in Vellalacheruvu tank were surrendered by the Society. The then Sub-

Inspector of Police Mr. Thirupalaiah, in his deposition stated that during his absence one Mr. Hanumantha Rao Head Constable acted as SHO of the Police Station Kommaalapadu and issued a certificate on 20-7-1995, stating that it is not possible to trace the records lost by Sheik Mastan, At the same time, he stated that he has not verified the type of investigation the Head Constable conducted before issuing the said certificate after he resumed the duty of SHO. The Head Constable, who acted as SHO in his deposition stated that Sheik Mastan informed him that after taking tea in the hotel he had been to the bank without picking up the bag containing Society records kept on the table and when he returned back to the hotel he found the bag containing records was missing, which is contrary to the representation given to the Assistant Director. It is interesting to note that the Head Constable neither verified from the bank whether Sheik Mastan lodged any complaint with the bank about the toss of Bank Guarantee and pass book nor recorded the statement of the tea hotel owner or the neighbours before issuing the said certificate. When the Court questioned him, how he issued certificate when such a request was not made in his representation dated 17-7-1995, he stated that Sheik Mastan gave another representation simultaneously for issuance of the said certificate about the loss of records and the Head Constable in the capacity of the SHO, issued the certificate even without ascertaining from him for what purpose he requires the certificate.

23. The real culprit in this case is Mr. A. V. Reddy, the then Assistant Director of Fisheries, Ongole. In his deposition he categorically stated that in his Proceedings No.1440 C.95, dated 28-7-1995, he permitted Sheik Mastan to open new records on the basis of the certificate issued by the Police, Kommaalapadu and the report given by his Subordinate-Assistant Inspector of Fisheries, Chakravayapalem, even without verifying from the Society as to what action the Society has taken on his letter dated 4-7-1995, wherein he directed the Society to remove Sheik Mastan and 8 others from the membership of the Society and also without verifying the truth or otherwise of the complaint given by Sheik Mastan from the Secretary of the Society who is the custodian of the records/properties of the Society under Rule 19(b) of the bye laws of the Society. He also admitted in his deposition that at Page Nos.94 to 96, of Ex.Al minute book produced by Koteswara Rao the election proceedings were recorded by the Election Officer for the elections held on 5-5-1994 and on the basis of the permission given by him, Sheik Mastan opened duplicate minutes book (Ex.A2) from 31-7-1995. In the minutes book maintained by Sheik Mastan it is shown that some of the elected members of the Managing Committee to the Society attended the meetings conducted by him. At the same time, as per the directions of the Assistant Director dated 4-7-1995, the Managing Committee of the Society at its meeting held on 21-7-1995 resolved to remove Sheik Mastan and others from the membership of the Society and authorised Sri A. Koteswara Rao, Vice President and Sri Meda Anjatah, Secretary of the Society, to take further action in the matter. When the Secretary of the Society tried to serve a copy of the show-cause notice of removal on Sheik Mastan dated 23-7-1995, Sheik Mastan seemed to have refused receipt of the notice and in those circumstances, the said notice was affixed to the door of Sheik Mastan's house. As the Society did not get any reply, the Managing Committee by its resolution dated 23-9-1995, resolved to remove Sheik Mastan from the membership of the Society and tried to serve the same on Sheik Mastan by RPAD. But Sheik Mastan avoided taking of the said resolution as by that time he got an order from the Assistant Director, to open new books/records. The action of the Managing Committee was also ratified by the General Body of the Society on 25-10-1995. But, somehow this order was not either communicated to Sheik Mastan or sent for approval of the functional Registrar, as required under the provisions of the Act. For that reason Justice Naik held that Sheik Mastan continues to be the President of the Society in his judgment dated 16-7-1998 in Writ Petition No.9326 of 1997 and batch.

24. While events as indicated above were taking place in the Society, Sheik Mastan, having obtained permission from Assistant Director on 28-7-1995 to open new record, in the Managing Committee meeting held by him on 10-8-1995, relinquished the lease of fishing rights in Elchuru tank and accordingly addressed a letter to the Sarpanch of the Gram Panchayat duly marking a copy of the same to the Assistant Director. The Assistant Director in his deposition denied the receipt of the said letter. But. the file produced by him in the Court not only contained a copy of the resolution alleged to have been passed by Sheik Mastan, but also an undated letter addressed by Sheik Mastan to Sri M. Ravindranath Reddy, Advocate at Hyderabad to withdraw the Writ Petition No.15360 of 1998 filed by A. Koteswara Rao as the Society did not authorise him to file the writ petition. In the said letter, he categorically stated that the Managing Committee of the Society passed a resolution giving up the lease of fishing rights in the tank at its meeting held on 10-8-1995 and the same was approved by the General Body meeting held on 14-8-1995. Further on 22-7-1996 Justice K.S. Shrivastav disposed of WP MP No.22290 of 1995 and WV MP No.2480 of 1995 in WP No. 15360 of 1993 and various other WP MPs in the above WP; WP No.9983 of 1996 along with WPMPNo.13141 of 1996 in WPNo.10816 of 1996 filed by Koteswara Rao questioning the orders of the Additional Director dated 4-6-1996 keeping his earlier orders dated 23-5-1996 in abeyance, wherein the Assistant Director was arrayed as fourth respondent. The learned Judge categorically recorded a finding that copy of the letter along with a copy of the Resolution was sent to the Assistant Director of Fisheries, Ongole; Inspector of Fisheries, Chakravayapalem and Divisional Panchayat Officer, Ongole. The above facts conclusively prove that the Assistant Director is aware of the Resolution passed by the Managing Committee headed by Sheik Mastan surrendering the lease-hold rights of fishing in the tank. But in the witness box he flatly denied the receipt of the above order. Thereafter, the Managing Committee headed by Sheik Mastan passed another resolution on 12-9-1995 requesting the Assistant Director to re-conduct proficiency test in fishing and Sheik Mastan seemed to have addressed the letter to the Assistant Director on 5-11-1995. Having come to know of the illegal activities of Sheik Mastan and Assistant Director, A. Koteswara Rao and his group made a representation to the Commissioner on 24-11-1995 bringing to his notice about the removal of Sheik Mastan and 8 others from the membership of the Society and the illegal orders passed by the Assistant Director permitting Sheik Mastan to open new record to defeat the claims of the Society headed by A. Koteswara Rao duly marking a copy of the same to him. The said representation was received in the Office of the Assistant Director on 29-11-1995. But the same is not available in the file maintained in his office. In his deposition, he admitted having seen the representation and a copy was marked to him and as per the Xerox copy of acknowledgment dated 29-11-1995, one Krishnamurthy working as Senior Assistant in his office received the representation. When the Court asked him as to how the representation received in the office of Assistant Director on 29-11-1995 is not to be seen in the file produced, he has no answer. 1 asked him to show at least any representation received from A. Koteswara Rao on 29-11-1995 under the above acknowledgment in his office. For this also, he has no answer. Even after receipt of the Resolution of the Managing Committee headed by Sheik Mastan on 10-8-1995 and the representation of the Society headed by A. Koteswara Rao on dated 24-11-1995, in pursuance of evil designs, the Assistant Director issued notice to Sheik Mastan and other ineligible members to appear for fishing test on 23-1-1996 and tried to justify his action stating that he issued notice on the basis of resolution of the Managing Committee wherein five of the elected members of the Society attended the meeting, even without verifying the genuineness of their signatures knowing fully well that there are serious disputes between them. According to him, after conducting the test, he addressed a letter on 21-3-1996 to the Regional Deputy Director of Fisheries to continue nine persons as members of the Society by stating that these nine members were not removed by the Society by following due procedure. When the Court questioned him to what does he mean by saying "9 persons were not removed so far by the Society following the procedure", he tried to justify his action by contending that the Resolution of the General Body removing these persons from the Society was not forwarded to him for approval as he happened to the Functional Registrar of the Societies in Ongole district. According to him, he received a letter on 9-7-1996 from the Society headed by A. Koteswara Rao informing about removal of Sheik Mastan and others. At the same time, he admitted that under Section 21(3X0 of A.P. Co-operative Societies Act, the Registrar on his own motion is entitled to remove a person not qualified to be admitted as member, but admitted as member of the Society and continued as such apart from the Managing Committee of the Society. When this Court asked him why he did not take action having found that Sheik Mastan and other ineligible persons after filing continued as members of the Society and having given a direction to the Society on 4-7-1995 to remove them as members and when the Society failed to implement the direction given by him, he simply stated that he has given direction to the Society. When the Court further probed him: Has he verified what action the Society has taken on the direction given by him on 4-7-1995, he admitted that he has not verified from the Society to find out the action taken by them.

25. In the meantime, A. Koteswara Rao, claiming to be the President of Society filed WP MP No.22290 of 1995 in WP No.15360 of 1995 questioning the arbitrary fixation of upset price by the Divisional Panchayat Officer and continued the possession over the tanks under interim orders granted by this Court from time to time, stating that the Society is entitled to obtain fishing rights on the same terms and conditions on which this Court permitted the Society to carry on fishing rights for the years 1993-94, 1994-95 and 1995-96. This Court by order dated 29-9-1995 directed the continuance of lease-hold rights in favour of the Society. Thereafter, the Gram Panchayat filed WV MP No.2480 of 1995 for vacating the interim order by contending that Sheik Mastan in his reply dated 10-8-1995 to the notice given by Gram Panchayat on 4-8-1995 informed the Executive Officer of the Gram Panchayat that the Managing Committee at its meeting held on 10-8-1995 resolved to relinquish its rights permanently and surrendered the tank to Gram Panchayat from the year 1995-96 and the fishing rights were put to public auction. The Gram Panchayat further contended that suppressing all these facts, A. Koteswara Rao and his men filed WP MP No.22290 of 1995 at the instance of one Bommireddy Sesha Reddy, who in fact is enjoying the profits derived from the Society.

26. While the controversy is going on in this manner in the Court, the Commissioner received the report of the Regional Deputy Director dated 7-5-1996 on the representation of the Society dated 24-11-1995 wherein he categorically stated that A. Koteswara Rao produced the record of the Society and also failure on the part of Sheik Mastan to appear before him with the record maintained by him inspite of repeated efforts made by him in that direction. In the said report, the Regional Deputy Director traced the entire background of the dispute and the production of the record by A. Koteswara Rao which contained the minutes of the election that was conducted to the Society on 5-5-1994 by the Election Officer and the Resolutions passed by the Society headed by A. Koteswara Rao for removal of Sheik Mastan and others from membership of the Society. The permission given by the Assistant Director on 28-7-1995 to Sheik Mastan to open new record and non-appearance of Sheik Mastan with the record that is being maintained by him inspite of service of the notice on him through registered post on 15-4-1996 and 30-4-1996. Having received the said report, Additional Director of Fisheries, Sri Bhavani Shanker in his letter No.21878/12/95 dated 23-5-1996 directed (1) the Deputy Director to arrange notification in the District Gazette of Prakasam about the removal of Sheik Mastan from the President ship of the Society and he is no more empowered to act under whatever pretext and whatever orders issued either by Assistant Director of Fisheries, Ongole, or Regional Deputy Director of Fisheries, Guntur. (2) to instruct the Assistant Director to communicate the District Collector (Panchayat Wing) and District Collector (Co-operative Wing) to inform about the removal of Sheik Mastan from the post of President of the Society and not to entertain any correspondence in his name under a copy to the Divisional Panchayat Officer concerned; (3) to recommend to the Gram Panchayat to consider the application for grant of lease of tank issued by the Managing Committee headed by Koteswara Rao for the year 1995-96 onwards ignoring the letter dated 10-8-1995 addressed by Sheik Mastan to Gram Panchayat and to seize the record maintained by Sheik Mastan following the procedure. He ended the letter by stating that a compliance report has to be submitted by 30-5-1996. Thereafter, the Additional Director having entertained a letter from Sheik Mastan on 4-6-1996 kept the orders dated 23-5-1996 in abeyance on the same day pending detailed enquiry into the matter by stating that Sheik Mastan submitted that the General Body of the Society at its meeting held on 28-9-1995 agreed to continue them as members of the Society, and the Assistant Director in his letter No. 1440/C/95 dated 8-12-1995 informed the Sarpanch, Gram Panchayat, Elchuru, that the Managing Committee headed by Sheik Mastan is elected as office-bearers of the Society and he permitted him to open new books as original books were found lost. Thus the Additional Director obliged Sheik Mastan by entertaining the application on 4-6-1996 and keeping his earlier order dated 23-5-1996 in abeyance forgetting the fact that he called for compliance report from Regional Deputy Director by 30-5-1996. It is also not known as to how he can act upon the letters of the Assistant Director having received the report from the Deputy Director on 7-5-19% that the original record of the Society was available with A. Koteswara Rao the Society removed Mastan from membership and the Assistant Director permitted Sheik Mastan to open new record and Sheik Mastan failed to appear before him with record having received notices on 15-4-1996 and 30-4-1996. If really the General Body passed a Resolution to continue Sheik Mastan as member of the Society, nothing prevented Sheik Mastan to appear before Deputy Director and place the genuine record for his inspection. Further, having taken nearly six months to act upon the representation of A. Koteswara Rao dated 24-11-1995 there was absolutely no need for the Additional Director to keep his order dated 23-5-1996 in abeyance without verifying the truth or otherwise of the contention of Sheik Mastan on the same day. Further, by the time he passed the order dated 4-6-1996, the audit report of the Society for 1995-96 and 1996-97 was available under the signature of the District Co-operative Officer whereunder it was categorically stated that A. Koteswara Rao is functioning as President of the Society. The hurry in which the Officer passed the order creates any amount of suspicion on the bona fides of the officer, more so having admitted in his deposition that he is aware of the serious dispute between Sheik Mastan on one side and A. Koteswara Rao on the other. If the intention of this officer is to find out the truth, nothing prevented him from giving a notice to A. Koteswara Rao and hear him before passing the order. He also admitted that the Regional Joint Director sent a report on 27-11-1996 stating that the meetings conducted by Sheik Mastan on 12-9-1995 and 28-9-1995 are genuine and he continues to be the President of the Society quite contrary to his earlier report and the office placed the file before Joint Director on 12-12-1996 and he directed the office to put up the report under Section 51 of the said Act. Though the office note is dated 15-2-1997, the file reached the Joint Director only on 5-8-1997 i.e., nearly after six months and the Joint Director without making any comments forwarded the file to him on 11-8-1997 and on 13-8-1997 he passed an order stating that no orders need be passed for continuance of Sheik Mastan as President as the elected term of the Managing Committee expired by that time. When the Court asked him what action he has taken about the continuance of Sheik Mastan as member of the Society in the light of the report under Section 51 of the Act, he admitted that he did not pass any order on that count.

27. Now again coming to the proceedings in the Court, as stated supra, Justice K.S. Shrivastav by order dated 22-7-1996 disposed of a batch of WP MPs in WP Nos.15360 of 1995, 9988 of 1995 and 10816 of 1996 wherein the learned Judge observed that the removal of Sheik Mastan depends upon deeper investigation because it is a complicated question of law and fact and that may or may not be investigated at the final hearing of the writ petitions and with a view to protect the interest of the auction purchaser, the order dated 22-9-1995 to continue the lease-hold rights of fishing for the year 1995-96 was modified and Society was permitted to catch fish by depositing a further sum of Rs.50,000/- apart from Rs. 1,50,000/-that was deposited under the interim order dated 22-9-1995 with the third respondent Gram Panchayat and additional bank guarantee for a sum of Rs.50,000/- to be furnished in the name of third respondent within ten days from the date of that order as upset price for the year 1995-96 and also directed the petitioner to furnish the bank guarantee in the name of Registrar (Judicial), High Court of Andhra Pradesh, for a sum of Rs.2,00,000/- to be paid to the auction purchaser as compensation in the event the writ petition is dismissed against it and restrained respondents 5 and 6 i.e., Sarpanch of the Gram Panchayat and the alleged auction purchaser from interfering with the rights of the petitioner Society in catching fish for the year 1995-96 from the tank in question. His Lordship further directed the police-respondents 1 to 4 in WP 9983 of 1996 to render all help to the petitioner Society (headed by A. Koteswara Rao) in implementing the said order of the Court whereby the right of fishing has been granted to the petitioner Society for the year 1995-96 subject to complying with the aforementioned conditions. Following the said judgment, I allowed WP No.16419 of 1996 seeking lease-hold rights for the year 1996-97 to the Society headed by A. Koteswara Rao and others by order dated 1-5-1998 on the same terms and conditions imposed by Justice K.S. Shrivastav. From these orders it is evident that my learned Brother KS. Shrivastav, J., and myself passed the above orders permitting the Society headed by A. Koteswara Rao to enjoy the lease of fishing rights in the tank keeping in view the entire background of the dispute including the removal of Sheik Mastan, surrender of lease-hold rights by Sheik Mastan by his letter dated 10-8-1995 and orders passed by Additional Director on 23-5-1996 and 4-6-1996. My learned Brother, Justice S.R. Nayak without referring to the factual background and the any of the orders passed by Justice K.S. Shrivastav and myself held that Sheik Mastan was not removed from the membership of the Society by following the procedure prescribed under Section 21(3) of the Act, as such, he continues to be the President of the Society. But the Division Bench of this Court in WA No. 1228 of 1998 and batch vide judgment dated 10-8-1998 while rejecting the contention of A. Koteswara Rao and his supporters for their appointment as Persons Committee after expiry of the elected term of the Managing Committee, in the disputed factual background of the Society directed the Registrar of Co-operative Societies to look into the affairs of the Society and observed as follows:

"The persons said to have been removed would be at liberty to apply before the Registrar for appropriate orders and the Registrar is directed to consider the same in accordance with law upon affording opportunity of hearing to the parties, including the writ petitioner, within a period of four weeks from the date hereof and thereafter take all necessary steps including intimation to the Collector for completion of the elections in accordance with law with utmost expedition."

28. From a reading of the judgment of Division Bench with regard to continuance of Sheik Mastan as President of the Society, it is seen that the Division Bench did not agree with the finding recorded by the learned single Judge and directed the persons said to have been removed to apply to the Registrar for appropriate orders. In the light of the judgment passed by the Division Bench, the order passed by the single Judge that Sheik Mastan continues to be the President of the Society became nan est. The position that emerges under the judgment of Justice Nayak was already discussed supra. To complete narration of facts, after the judgment of Division Bench, Sheik Mastan and his men did not choose to approach the Registrar. On the other hand, the Registrar acting upon the judgment of Division Bench issued office notice No.4904/98 dated 21-9-1998 under registered post acknowledgment due to nine ineligible members including Sheik Mastan as to why they should not be removed from the rolls of the Society as they failed to qualify the test conducted by the Enquiry Officer as per the enquiry report under Section 51 of the Act. Sheik Mastan and others having received the notice on 16-10-1998 failed to file any written objections before the Commissioner within the time stipulated or till the date of final order on 19-11-1998 whereunder the Commissioner, having agreed with the findings recorded by the Enquiry Officer, directed the Assistant Director/Part-time Person-in-Charge to take immediate action under Section 21 of the Act for removal of ineligible members from the membership of the Society and pass necessary resolution in the minutes book for their removal and also, refund the share capital standing to their credit and intimate the fact of removal of all ineligible members duly supplying copy of the resolution of the PPIC to the Society under proper acknowledgment. Having received the orders, Sheik Mastan filed a review petition on 25-1-1999 and the same was dismissed by the Commissioner on 17-4-1999 and the order of removal passed by the Commissioner (Registrar) on 19-11-1998 became final as Sheik Mastan did not choose to file any writ petition questioning the order. After passing the said order, the issue of continuance of Sheik Mastan as President or member of the Society was closed once for all.

29. Now the question remains with regard to claim of petitioners in CA No.301 of 1999 that they are the members of the Society has to be decided.

30. As stated supra, the original books of record are with the Society headed by A. Koteswara Rao and under the orders of Assistant Director dated 28-7-1995, Sheik Mastan opened new book and went on passing several resolutions by showing that the members of the Managing Committee elected along with him on 5-5-1994 were attending the meetings. It is rather difficult to hold that the other elected members of the Managing Committee on 5-5-1994 attended the meetings conducted by Sheik Maslan after 28-7-1995 as it is seen from the original minutes book produced by the group headed by A, Koteswara Rao in the Court and marked as Ex.A1 while recording the deposition of the Assistant Director that the Managing Committee has resolved to remove Sheik Mastan and others at its meeting held on 21-7-1995. A show-cause notice was issued by the Secretary, Mr. M. Anjaiah in that behalf to submit their explanation, but they refused to receive the same. Thereafter, the Managing Committee at its meeting held on 23-9-1995 passed a resolution removing Sheik Mastan from membership of the Society and the same was ratified in the General Body meeting held on 25-10-1995. Subsequently, the Society headed by A. Koteswara Rao filed innumerable writ petitions questioning the orders passed by the Departmental Officers or for the continuance of the lease of fishing rights in favour of the Society, more so after the Managing Committee headed by Sheik Mastan surrendered the lease-hold rights of fishing at its meeting on 10-8-1995 and for appointment of elected member of the Managing Committee on 5-5-1994 as PPIC after expiry of the term, apart from filing repeated representation against the illegal activities of Mastan. If really Sheik Mastan continues to be the President of Society, he would have definitely approached this Court to protect the interests of the Society. On the other hand, he not only addressed a letter to the Counsel for the Society to withdraw the WP No. 15360 of 1995 stating that the Society has not authorised him to file the writ petition but also did not participate in the inquiry conducted by Regional Deputy Director on the petition of A. Koteswara Rao. He even did not choose to submit his explanation to the show-cause notice dated 21-9-1998 for his removal or questioned the correctness of the order of removal dated 19-11-1998. The original Managing Committee of the Society at its meeting held on 25-1-1996 elected A. Koteswara Rao as President of the Society in place of Sheik Mastan consequent upon his removal from the membership of the Society and A. Koteswara Rao was fighting the litigation either as in-charge President or as regular President of the Society although. It is also seen that on 21-11-1995 A. Koteswara Rao made a representation to the Commissioner against the illegal activities of Sheik Maslan in collusion with the Assistant Director. A. Koteswara Rao in his deposition categorically stated that he never attended the meeting convened by Sheik Mastan and the signatures found in the minutes book maintained by Sheik Mastan do not belong to him. He also stated that none of the elected members on 5-5-1994 ever attended the meetings conducted by Sheik Mastan. He also stated that he made innumerable representations to the authorities concerned against the illegal activities of Sheik Mastan and Assistant Director, who are acting against the interests of the Society. None of the officers have taken any action on the representations sent by him from time to time. In fact, Counsel appearing for A. Koteswara Rao produced the other members of the Managing Committee to record their evidence also. But, having seen that how duplicate records were brought into existence by Sheik Mastan and Assistant Director and having seen the conduct of Sheik Mastan in surrendering the lease-hold rights of fishing in the tank on 10-8-1995, I felt that there is no need to record their statements any more. Sheik Mastan being the President acted against the interests of the Society. After surrender of the lease-hold rights by Sheik Mastan in pursuance of this evil design in collusion with the Sarpanch of the village and Assistant Director, there remains nothing for the functioning of the Society as the Society already surrendered the fishing rights of other tank in Vellalachem, which is being enjoyed by them on 18-7-1995. Even according to the applicants, though the Managing Committee headed by Sheik Mastan passed a resolution on 6-3-1996 admitting them as members of the Society, the Assistant Director gave permission to admit them as members of the Society in his proceedings No.529/C/96 dated 11-11-1996, nearly after nine months. By the time the Assistant Director passed the above order, the order of this Court dated 22-7-1996 passed by Justice K.S. Shrivastav directing continuance of lease-hold rights of fishing in favour of the Society headed by A. Koteswara Rao is within the knowledge of the Assistant Director as he is a party respondent to the proceedings. He is also aware of the orders passed by the Director dated 23-5-1996, report submitted by the Regional Joint Director on 7-5-1996, though it was kept in abeyance by the Director on 4-6-1996 and also the action of Sheik Mastan in surrendering the lease-hold rights of the tank on 10-8-1995. Any prudent person would have made enquiries into the claims of the Managing Committee of the Society why they would like to admit new members. Practically, when there is no activity whatsoever by that time. When the Court questioned the Assistant Director, it is only after this the High Court passed order on 22-7-1996, he passed the order admitting 72 members of the Society on the representation dated 6-3-1996, his answer was "I cannot answer this question". Further, as per the circular issued by the Commissioner to make the Society viable, the authorities have to take necessary precaution to see that for each fisherman, atleast one hectare of water-spread area is made available. Admittedly, in this case the water-spread area of the tank in question is only 60 acres and by that time, as many as 77 members are on the rolls of the Society. It cannot be said that the Assistant Director is not aware of the instructions given by the Commissioner. Inspite of all the facts stated above, he has chosen to give permission for admission of 72 members. As stated supra, when they filed WP MP 20771 of 1998 in WP 16880 of 1998, this Court dismissed their application by separate order dated 16-7-1998 holding that they are neither necessary nor proper parties to the writ petition. During his deposition, when the Court confronted the Assistant Director that under bye-law No.5 of the bye-laws of the Society, persons seeking admission as members of the Society have to file individual applications and whether he was verified the record at least maintained by Sheik Mastan to satisfy himself that these applicants are seeking admission by following the procedure, he stated that he did not verify the record. Even according to him, A. Koteswara Rao informed him by his letter dated 9-7-1996 that Sheik Mastan was removed from the membership of the Society on 21-7-1995. Even then, he did not feel it appropriate to verify the genuineness of the claim of Sheik Mastan in admitting these persons as members of the Society and for what purpose Sheik Mastan admitted them as members of the Society. Sri Y. Subba Reddy, Counsel appearing for the applicants tried to contend that A. Koteswara Rao and his group filed WP MPs 21016 of 1998 and 21017 of 1998 seeking amendment of the prayer in WP No.10816 of 3996 wherein the orders of the Commissioner dated 4-6-1996 keeping his earlier order in abeyance was challenged, they also tried to question the proceedings of the Assistant Director dated 11-11-1996 granting permission to the Society headed by Sheik Mastan to admit new members by seeking amendment of the prayer and also sought suspension of the above proceedings, which were dismissed by separate orders on 16-7-1998 and that WP MPs were filed for the first time nearly after one year after their admission. But Sri M. Subba Reddy did not place any material before this Court to show that A. Koteswara Rao and his men are aware of the orders passed on 11-11-1996. At any rate, in the teeth of the orders of this Court dated 22-7-1996 and the representation of A. Koteswara Rao dated 9-7-1996, the order of Assistant Director has to be declared as void ab initio as the same was not even passed after giving notice to Koteswara Rao having come to know of the removal of Sheik Mastan and the appeal filed by Koteswara Rao and his men against the orders of Assistant Director dated 11-11-1996 is still pending before the Commissioner. The Regional Deputy Director, Mr. Sattar, who submitted his report on 7-5-1996 stating that the original records are available with Mr. A. Koteswara Rao and Mr. Sheik Mastan was removed from the membership of the Society and Mr. Sheik Mastan having received the notice, did not appear before him and produced the records that are being maintained by him pursuant to the orders of the Assistant Director dated 28-7-1996, has taken a round-about turn and sent a contrary report dated 27-11-1996 stating that the meetings held by Sheik Mastan on 12-9-1995 and 28-9-1995 are genuine, could not appear in Court because of his ill-health. With the result, he could not be confronted with the records that the second report sent by him is intended to help Mr. Sheik Mastan by eating away his earlier report. Be that as it may, in the light of the voluminous evidence that come to light in this case, the report of Mr. Sattar dated 27-11-1996 has to be eschewed as the same is contrary to the record. In the light of the above factual background, the petitioners in CA No.301 of 1999 cannot claim that they are legally admitted members of the Society and they have locus standi in the contempt case, more so having filed Contempt Appeal and Letters Patent Appeal and withdrew them. For all these reasons, the application is dismissed with costs. Advocate's fee Rs.5,000/-.

31. Before deciding whether the contemnor flouted the orders of this Court or not, one more application in CA 474 of 1999 filed by 48 persons claiming that they are admitted as members of the Society by Koteswara Rao and his group has to be disposed of. Admittedly, A. Koteswara Rao and his group seemed to have admitted these persons from time to time only to gain control over the affairs of the Society in the event of Sheik Mastan's claim for admission of 72 persons as new members of the Society being upheld either by the departmental authorities or by the High Court. At any rate, for these persons, no fishing test was conducted and no permission was given by the Assistant Director for their admission. Hence, they also cannot be treated as members of the Society and this application is also dismissed.

32. Now coming to the merits of the contempt case, admittedly I made crystal clear in the preceding paras of the judgment that my learned brother and myself gave orders permitting the members of the Society headed by A. Koteswara Rao to carry on fishing operations subject to the aforementioned conditions. In the contempt case, an Advocate-Commissioner was appointed by this Court on 10-9-1998 and he conducted the General Body meeting of the Society on 2-10-1998 and reported that 56 members including the members of the Managing Committee participated in the General Body and unanimously resolved that as and when the situation permits, the fish should be allowed to be caught by the members who are on the rolls of the said Society on 5-5-1994. In the contempt case by order dated 10-9-1998 while appointing the Advocate-Commissioner, I observed that in the normal course, I would have permitted A. Koteswara Rao and his group to carry on the functions but for the writ petition filed by him questioning the orders of the contemnor dated 15-6-1998. I should also keep in mind that pursuant to the orders of the Government in G.O. Rt. No.287, dated 10-6-1998, the contemnor assumed charge. On 15-6-1998 and on the same day he issued this order. In the witness box when this Court confronted him that the sale of fish being a policy matter, why he has not taken the opinion of the General Body as required under Section 30 read with Bye-law No.23 of the Bye-laws of the Society, his answer was that as he was not having time, he called for the quotations as he is empowered to do so under Bye-law No.41. But, under bye-law No.41(3), the Board of Directors may arrange for sale and catch of fish made by members and in doing so, they shall act as agent of the members and shall not do business as owner. From this, it is seen that for any arrangement for selling fish, the approval of the General Body is required. But, without following any procedure and without reference to the orders of this Court, dated 1-5-1998, the contemnor issued notification against the interest of the members of the Society. Further, the questioning of catching fish under the orders of this Court dated 1-5-1998 arises only after furnishing bank guarantee in favour of the Gram Panchayat for a sum of Rs. 1,50,000/- and in favour of Registrar (Judicial) for Rs.2,00,000/-. Without complying with the direction of the Court, he tries to sell the fish on the basis of a bank guarantee given by one Chemulacherla Musalayya in favour of the Gram Panchayat who according to him, belongs to the group of Mastan. He did not even verify whether that gentleman gave Bank guarantee in favour of Registrar (Judicial) or not. When the Court confronted him in whose favour the Court has given the order his answer was "I could not understand the effect of the order". The implead petitioners in CA No.301 of 1999 tried to justify the action of the contemnor by contending that Writ Petition No.16880 of 1998 filed by A. Koteswara Rao and his men questioning the notification issued by the contemnor has been dismissed by Justice S.R. Nayak by his order dated 16-7-1998, observing that the impugned notice is one issued by the person in-charge calling for applications to part with the lease-hold rights in the public auction. In the above writ petition, the real controversy is apart from questioning the action of the Government in appointing an official as person in-charge to manage the affairs of the Society rejecting the proposal of the Commissioner, dated 5-5-1998, wherein he recommended for appointment of five of the erstwhile members of the Managing Committee as persons Committee, whether the PPIC is entitled to call for quotations in sealed covers from outsiders to sell fish to be caught from the tank in the light of the orders of this Court, dated 22nd July, 1996 by Justice Shrivastav and the orders of mine, dated 1-5-1998, more so, without the approval of the General Body of the Society. The learned Judge, without referring to the orders of this Court and the statutory provisions, simply made the above observation. The observation made by the learned Judge has to be treated as per incuriam as the learned Judge did not consider the validity of the notice dated 15-6-1998 in the light of the controversy that cropped up in the writ petition and the same cannot come in my way in finding out whether the orders of this Court dated 1-5-1998 have been flouted by the contemnor or not. Once the cloud is cleared, I have no manner of doubt that the respondents committed contempt of Court by flouting the orders of this Court dated 1-5-1998 in Writ Petition No.16419 of 1996 in taking the record from Sheik Mastan, though the order in question was obtained by A. Koteswara Rao and others, knowing fully well that there are serious disputes between Sheik Mastan and his men on one side and A. Koteswara Rao and the real members of the Society on the other side and in trying to sell the fish to outsiders by inviting quotations in sealed covers contrary to the spirit and tenor of the order of this Court dated 1-5-1998. Since the contemnor retired from service, I am inclined to impose simple imprisonment till the rise of the Court and to pay a fine of Rs.2,000/- within two weeks from to-day. In default, he shall suffer simple imprisonment for four weeks. However, it is made clear that this order would not come in the way of the Department to initiate disciplinary proceedings against the officer and to pursue the same to its logical end. As far as Mr. A. V. Reddy, the main culprit in this case, is concerned, the disciplinary proceedings already initiated against him by the Commissioner shall be completed expeditiously by obtaining certified copies of his deposition in this Court. He should also see why copies of the representations sent by A. Koteswara Rao to higher authorities duly marking copies to the Assistant Director are not available in the file maintained by the office of the Assistant Director, Ongole.

33. The other officers who acted to the tunes of Mastan, most probably at the behest of the political clout and who tried to ruin the very existence of the Society by issuing orders in favour of Mr. Sheik Mastan at his beck and call contrary to their earlier orders and record, are : (1) Mr. Bhavani Shankar, Additional Director, (2) Mr. Sattar, Regional Deputy Director, Guntur, (3) the Inspector of Fisheries, Chakriyapalem; (4) Mr. Tirupalayya, (5) Mr. N. Hanumantha Rao who worked as Sub-Inspector and Head Constable respectively at Kommalapadu Police Station during July, 1995 and who are responsible by issuing a false certificate on the loss of records by Mr. Sheik Mastan without any enquiry facilitated him to open duplicate records with the help of Mr. A. V. Reddy, the then Assistant Director of Fisheries. It is also evident from the judgment of this Court in Writ Petition No.593 4 of 1993 and batch dated 15-7-1998; (6) the District Collector; and (7) the Divisional Panchayat Officer also acted to the tunes of the Sarpanch in trying to liquidate the Society. Hence, it is for the Chief Secretary to take a decision on the desirability of initiating disciplinary action against the erring officials who failed to discharge their duties impartially and trying to see that welfare measure intended to improve the living conditions of weaker sections of the Society as envisaged in the Directive Principles of State Policy a mockery, by giving suitable directions to the concerned, so that the Beaurocracy won't interfere with the rights of the illiterate and ignorant people of this country at the behest of political bigwigs of that area, under various welfare measures and allow them to live in peace.

34. Before parting with the contempt case, it is made clear that the members of the Society who are on the rolls as on 5-5-1994 are alone entitled to catch the fish, harvest the fish and enjoy the benefits.

Writ Petition Nos, 34994 and WP MP No.9864 of 1999.

Sixty four members of the Vellalacheruvu Fishermen Co-operative Society, who were on the rolls of the Society on the day when elections were held, i.e., 5-5-1994, filed this writ petition, after disposal of Writ Appeal No. 1228 of 1998 and Batch by a Division Bench of this Court, dated 10-8-1998, questioning the inaction on the part of R2 and R3 in not taking the records of the Society from the Secretary of the Society, who is the custodian of the records and also in not implementing the orders of the Commissioner Re. No.4904/1 of 1998, dated 19-11-1998, wherein Sheik Mastan and eight other ineligible members of the Society were directed to be removed from the membership of the Society pursuant to the directions given by a Division Bench of this Court in Writ Appeal No.1228 of 1998 dated 10-8-1998.

35. Along with the writ petition they filed WP MP No.43107 of 1998 seeking a direction to respondent Nos.2 and 3 to take the record from the Secretary of the Society and conduct elections to the Society pending disposal of the writ petition.

36. By order dated 21-1-1999, my brother Justice Bilal Nazki directed this writ petition to be posted before me along with CC No.765 of 1998 and since then, this coming is coming up for hearing along with CC No.765 of 1988. On 12-4-1999, 70 persons claiming that they were admitted as members of the Society on 8-11-1996 and on 19-11-1996 as per the procedure envisaged in the Andhra Pradesh Cooperative Societies Act, 1964, headed by Sheik Mastan, filed WP MP No.9864 of 1988 seeking permission of the Court to get themselves impleaded as parry-respondents by contending that Sheik Mastan filed a representation before the Commissioner to review his orders in Express Memo No.4904 of 1998, dated 19-11-1998 and as per the voters' list prepared by the person in-charge on 5-4-1999, they are eligible to participate in the elections and as such a direction should be given to the Person in-charge to conduct elections on the basis of the voters' list already published by him. Petitioners filed counter contesting the claim of these members to participate in the elections to be conducted to the Society. Subsequently, on 15-4-1999, the petitioners filed two petitions, i.e., WP MP No.9938 of 1999 seeking amendment of the prayer and an additional relief against the Commissioner in not disposing of the appeal preferred by them against the orders of R2 No.529/C/95, dated 11-11-1996, wherein permission was accorded to Sheik Mastan to admit new persons who want to come on record as party respondents and another petition, WP MP No.9939 of 1999 seeking suspension of the orders of R2 dated 11-11-1996.

37. The 2nd respondent filed his counter on 30-7-1999 wherein he stated that the elections to the Society were sought to be conducted by putting the election process in motion by the District Collector in his proceedings No.432/C/97 dated 10-6-1997, directing that the elections should be held on 19-7-1997, but because of the orders of this Court, dated 24-4-1997 in Writ Petition No.8326 of 1997 which was disposed of by Justice Nayak on 16-7-1998 in Writ Petition No.10816 of 1996 and Batch election to the Society could not be held. He also stated that the orders of the Commissioner, dated 19-11-1998 were implemented through resolution adopted by the Person in-charge at its meeting held on 7-12-1998 and the resolutions were also communicated to the concerned. He also justified his action in not conducting the elections after disposal of the above writ petition on the ground that the appeal preferred by the petitioners on 21-10-1998 is still pending before the appellate authority. He also tries to justify his action in not taking records of the Society from the Secretary by stating that the petitioners never approached him along with the records or even submitted any records to the authorities which are alleged to be in his custody, which is obviously faise in view of the narration of the factual background stated in the contempt case.

38. Nextly he contended that the subject matter of the writ petition is squarely covered by the judgment of this Court in Writ Petition No.8326 of 1997, which was dismissed on 16-7-1998 and confirmed by the Division Bench by order dated 10-8-1998 in Writ Appeal No.1228 of 1998 and batch and the same operates as res judicata.

39. Sri Ramachandra Rao, senior Counsel appearing for Mr. Subba Reddy, Counsel appearing for the impleaded petitioners contended:

(i) that the judgment of Justice Nayak became final and the findings of fact and law are not open to challenge in this writ petition;

(ii) the judgment in Writ Appeal No.1228 of 1998, dated 10-8-1998 was further confirmed by the Supreme Court by its judgment dated 30-11-1998 in SCLP No.18131 of 1998 and the judgment of Justice Nayak received the seal of approval and became final;

(iii) the petitioner in this writ petition happened to be the petitioner in the earlier writ petition--WP No.8326 of 1997, he cannot be allowed to re-agitate the issue since he is not entitled for the for the same either in equity or under the discretionary powers of this Court;

(iv) the jurisdiction of this Court is not available to the petitioners;

(v) the probe by this Court is neither valid nor within its scope as the same is contrary to the earlier findings of this Court in the earlier writ petition;

(vi) Sheik Mastan continues to be President; and

(vii) the entire exercise was done not by Sheik Mastan but by the entire Board.

Countering these arguments, the Counsel for the petitioner Sri M. V. Rarnana Reddy in his reply contended that till the judgment of Justice Nayak Mastan was never in the picture and he continues to be the President of the Society by legal fiction, the Division Bench modified the orders of Justice S.R. Nayak and under the orders of the Division Bench the Commissioner, after following the procedure, removed Mastan and other ineligible from the membership of the Society by proceedings dated 19-11-1998.

40. From the pleadings and arguments addressed at the bar, the Court is called upon to decide whether the judgment of Justice Nayak, dated 16-7-1998 comes in the way of the Court in finding out the true affairs of the Society, more so, when the learned Judge recorded the findings only by interpreting Section 21(3) of the Co-operative Societies Act without reference to the records maintained by the Society as well as the official respondents. The next question that falls for consideration would be whether Sheik Mastan continues to be the President and the Managing Committee, which according to them, admitted them as members of the Society is the same Committee that was elected on 5-5-1994. I have to answer these issues in the negative for the following reasons :

From the factual background adverted to by me, in the contempt case, it is seen that on a representation made by Koteswara Rao and others on 24-11-1995, wherein they categorically stated that Sheik Mastan was removed from the membership of the Society and complained against the illegal action of the Assistant Director in permitting Mastan to open new records, the Deputy Director conducted a detailed enquiry and submitted a report to the Commissioner on 7-5-1996, wherein he categorically stated that the original records of the Society are available with Mr. A. Koteswara Rao and the other elected members of the Society and they have passed resolutions removing Sheik Mastan from the membership of the Society. Further, he has also stated that he has given a notice to Sheik Mastan to produce the records maintained by him pursuant to the orders of the Assistant Director dated 28-7-1995 permitting him to open new records, but he failed to appear before him and did not produce the records and the efforts made by him did not yield any fruitful results. Basing upon the said representation, the Additional Director by his proceedings, dated 23-5-1995 directed the Deputy Director of Fisheries to arrange for notification about the removal of Sheik Mastan from the President of the Society in the District Gazette stating that he is no more empowered to act in the name of under whatever pretext and whatever orders issued either by the Assistant Director of Fisheries, Ongole of the Regional Deputy Director of Fisheries, Guntur. Secondly, he directed him to inform the District Collector of Co-operation and the Divisional Panchayat Officer that Mr. Sheik Mastan was removed from the President ship of the Society and no correspondence need be entertained. The most important aspect of this letter is that in para 3 the Additional Director directed his subordinates to recommend to the Panchayat to consider the application of the Managing Committee headed by Mr. A. Koteswara Rao for grant of lease of fishing rights for the year 1995, ignoring the letter dated 10-8-1995 of the Society sent by Sheik Mastan surrendering the lease-hold rights of fishing in the tank. But thereafter, for reasons best known to him, by proceedings, dated 4-6-1996, this order was kept in abeyance under the guise of eliciting the true affairs of the Society. Thereafter, the Regional Deputy Director, obliged him by sending a report on 27-11-1998 on the basis of the records stating that the meetings conducted by Sheik Mastan on 12-9-1995 and 28-9-1995 are genuine perhaps on the basis of the duplicate records that are being maintained by Sheik Mastan pursuant to the orders of the Assistant Director dated 28-7-1995 Mr. Bhavani Shankar, the Additional Director categorically stated that the audit reports for the years 1995-96 and 1996-97 duly authenticated by the District Cooperative Officer are very much available in his file, wherein it was shown that Mr. A. Koteswara Rao and other elected members of the Society are managing the affairs of the Society. This being the factual position, my learned brother Justice Nayak in his judgment dated 16th July, 1998 in Writ Petition No.10816 of 1996 held that Sheik Mastan continues to be the President of the Society as he was not removed as per the procedure indicated in Section 21(3) of the Act and it should be held that he continued to be in office till the term of the office expired. But this part of the judgment was reversed by the Division Bench in its judgment dated 10th August, 1998 in Writ Appeal No. 1228 of 1998 and Batch, wherein their Lordships, while rejecting the contention of the petitioners that they are entitled to be appointed as persons in-charge of the Managing Committee before the expiry of the term, categorically observed that the persons said to have been removed would be at liberty to apply before the Registrar of Co-operative Societies for appropriate orders and the Registrar was directed to consider the same in accordance with law upon affording an opportunity of hearing to them including the writ petitioners, within a period of three weeks from the date hereof. From this, it is evident that the finding of Justice Nayak that Sheik Mastan continues to be the President of the Society was nullified and he was directed to apply to the Registrar for appropriate orders but the said Sheik Mastan never applied before the Registrar complaining against the resolution adopted by the Managing Committee headed by Mr. A. Koteswara Rao removing him from the president ship of the Society. On the other hand, the Commissioner, acting on the judgment of the Division Bench, gave a show-cause notice to him on 21-9-1998 why he should not be removed from the membership of the Society and Mastan having received the notice failed to submit any explanation. In those circumstances, by Express Memo No.4904 of 1998 dated 19-11-1998, the Commissioner passed orders directing the Assistant Director and person in-charge to remove Sheik Mastan and others from the membership of the Society. Acting upon the said direction, the person in-charge in his resolution, dated 7-12-1998 removed Mastan and others from the membership of the Society. The same has been approved by the Deputy Director of Co-operative Societies, Ongole. Thereafter, the persons in-charge by his letter, dated 7-12-1998 communicated the minutes to all the ineligible members of the Society. Having received these notices, Sheik Mastan filed a review application before the Commissioner on 25-1-1999, and the same was dismissed on 17-5-1999 and those orders had become final. As Sheik Mastan's chapter came to an end with these proceedings the Court has to see the effect of the duplicate records maintained by Sheik Mastan by giving a false complaint to the police and the Assistant Director, who obliged him by giving orders permitting him to open new records. The Assistant Director in his deposition tried to justify his action by staring that A. Koteswara Rao and other elected members of the Society attended the Managing Committee meetings called for by Sheik Mastan and he only acted upon the resolutions of the Managing Committee. Mr. A. Koteswara Rao in his deposition stated that none of the elected members of the Managing Committee ever attended any of the meetings conducted by Sheik Mastan. In the contempt case, having gone through the entire record, 1 recorded a finding that Sheik Mastan forged the signatures of the real members of the Society. Further, till the judgment of Justice Nayak, Sheik Mastan never approached this Court in protecting the interests of the Society and the Board through A. Koteswara Rao and other elected members was fighting the litigation. In fact, by his resolution dated 30-8-1995, Sheik Mastan surrendered the lease-hold rights of fishing in the tank.

41. From this background, even assuming that Sheik Mastan continues to be the President of the Society by legal fiction under the orders of Justice Nayak, the question of running a parallel Society by forging the signatures of the elected members of the Managing Committee by Sheik Mastan does not arise. Further, even if the election of A. Koteswara Rao as President of the Society cannot be upheld, the Court should not forget the fact that he was the elected Vice President of the Society on 5-5-1994 along with Mastan. Hence, even if Sheik Mastan continues to be the President of the Society, the minutes recorded by the Managing Committee elected on 5-5-1994 will not be vitiated on the ground that Sheik Mastan had not attended the meetings. I have already dealt with the issue on maintenance of duplicate records by Sheik Mastan in the contempt case and held that they have no santity and they have to be eschewed. Hence, the question of admitting any members by Sheik Mastan on 14-11-1996 does not arise. Further, though it is alleged that on 6-3-1996 the Managing Committee headed by Sheik Mastan adopted a resolution admitting them as members of the Society, the Assistant Director has given him permission to admit them as members of the Society on 11-11-1996, by which time this Court recorded a finding that the Society headed by A. Koteswara Rao is entitled for the lease of fishing rights in the tank in question, after adverting to the various commissions and omissions committed by Sheik Mastan and the Assistant Director is a party to this order. In the witness box, when the Court confronted him as to how he admitted these persons as members of the Society after the orders of Justice Shrivastav, his answer was: "I cannot answer this question". Nextly after surrender of fishing rights in this tank on 10-8-1995 and in another tank on 18-7-1995, practically the Society gave up its activity and for that purpose, these persons were admitted as members of the Society. When the Court confronted the Assistant Director on this aspect, he has no answer. Nextly, the Government in its Memo No.HSS/Fish.II (I)/99-l, dated 11-2-1999 directed the Commissioner to give instructions to his subordinates to take the records from Anjayya, the then elected Secretary of the Managing Committee admitting them as members of the Society and it is not the case of the petitioners that the resolutions adopted by the Managing Committee admitting them as members of the Society are available in the minutes book available with M. Anjayya.

42. For ail these reasons, I hold that the implead petitioners were not admitted by the real Society in accordance with law and on the other hand Sheik Mastan with the help of the Assistant Director manipulated the record to gain control over the affairs of the Society by using dubious methods. Hence I hold that these persons are neither necessary nor proper parties to adjudicate the Us before this Court. Accordingly, WP Misc. Petition No.9864 of 1999 filed by the implead petitioners is dismissed.

43. With regard to their contention that in the voters's list prepared by the person-in-charge their names are included and as such they are entitled to participate in the elections, I have already held that the entire Governmental machinery was at the beck and call of Sheik Mastan for reasons known to it and it tried to help Sheik Mastan to the detriment of the real Society. In fact, the PPIC without taking the record from M. Anjaiah, who is the Secretary of the Society and who is the custodian of the records of the Society, has taken the records from Sheik Mastan and included the names of these persons in the voters' list. In the light of the view taken by me that the records are forged ones, the question of acting upon the voters' list published by PPIC does not arise. From the report of the Regional Deputy Director dated 7-5-1996 and the audit reports for the years 1995-96 and 1996-97, it is evident that real records of the Society are with Mr. M. Anjaiah, Secretary of the Society, who is the custodian of the records under Bye-law 19(b) of the bye-laws of the Society. As they are the genuine and true records, the question of maintaining duplicate records by Sheik Mastan does not arise. Atlast wisdom seemed to have down on the Government. Now the Government issued Memo No.1 158/99/1, dated 11-2-1999 directing the Commissioner to direct his subordinates to take records from M. Anjaiah, Secretary of the erstwhile Managing Committee. This order has become final as the correctness or otherwise of this order was not assailed by anyone.

44. In the contempt case, I have already taken the view that some of the members were admitted by the Managing Committee headed by Mr. A. Koteswara Rao from time to time to gain control over the affairs of the Society in the event of the claim of Sheik Mastan being upheld. They cannot also be permitted to be admitted as members of the Society. At any rate, the Assistant Director has not given permission to the Committee to admit them as members of the Society.

45. For the foregoing reasons, this writ petition is allowed and a direction is given to the respondents to call for the records available with Mr. M. Anjaiah and conduct the elections to the Society with the original members of the Society who are on the rolls as on 5-5-1994, as early as possible, at any rate, within three months from the date of receipt of this order.

46. Before parting with the case, this Court would like to place its displeasure on record on the way the Executive is conducting itself at the behest of the political big-wigs and vested interests of the area to see that the fruits of the welfare measures initiated by the Government to give effect to the Directive Principles of State Policy to improve the living conditions of the unfortunate teaming millions of the poorer sections of the Society, who even to-day depend upon their traditional occupations for eking out their livelihood, whether they are fishermen or weavers or tappers or labourers, are not translated to reality. As and when there is a change in the party in power the lives of these people are becoming much more miserable and these Societies have turned to be a hot bed of politics as the leaders are trying to get control over these Societies at times by adopting unethical methods with the active connivance of the officers who look at them for favours.

47. Unfortunately, even after fifty two years of Independence, the privileges to be enjoyed by the Legislatures are not codified, with the result, the Courts are not able to take a deterrent action against the erring Legislators, who are interfering with the day to day affairs of these Societies and ruining them practically, though according to me, it is not a function of the Legislator. This Court is of the Firm opinion that if the democratic form of Government has to survive in this country and the political parties are really committed for establishment of an egalitarian Society, the authorities concerned should make a retrospection on the way the politicians are behaving in this country and prescribe a code of conduct for these politicians to save the common man from the greedy politician.

48. The Speaker of the State Assembly, who has already set ball in motion by conducting seminars and symposia to evolve certain guidelines for observance of minimum code of conduct in public life may convene a meeting of the leaders of all the political parties and arrive at a concensus to see that the politicians are restrained from interfering with the internal affairs of atleast the productive Societies that came into existence under the provisions of the Andhra Pradesh Cooperative Societies Act for improvement of the living conditions of their members, otherwise, the democracy will lose its meaning and purpose.

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Andhra HC (Pre-Telangana)

Vellalacheruvu Fishermen Cooperative ... vs L. Koti Reddy And Another on 17 August, 1999

Equivalent citations: 1999(5)ALD657