Andhra HC (Pre-Telangana)
R.Amber Singh And Another vs The Deputy Registrar Of Cooperative ... on 12 March, 2015
Equivalent citations: AIR 2015 (NOC) 907 (HYD.)
Author: R.Kantha Rao
Bench: R.Kantha Rao
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.5607 of 2015
12-3-2015
R.Amber Singh and another Petitioners
The Deputy Registrar of Cooperative Societies, Divisional Coop. Officer,
Bodhan, Nizamabad Dist.,;and 4 others Respondents
Counsel for the Petitioners: Sri Nandigam Krishna Rao
Counsel for the Respondents: Government Pleader for
Cooperation
<Gist:
>Head Note:
? Cases referred:
Nil.
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.5607 of 2015
Date: 12-3-2015
Order:
The 1st petitioner is the President and the
2nd petitioner is the Vice President of the Primary
Agricultural Cooperative Society, Chandoor village, Varni
Mandal of Nizamabad district. They were elected as
members of the Society in the month of January, 2013 and
thereafter, as President and Vice-President of the said
Society. It is submitted by them that by reason of change
in the political scenario in the State, the political party
which is in power abducted certain members of the Society
and kept them in a camp since 19-02-2015 and got issued
a letter purportedly written by 10 members of the Society
expressing their intention to move Motion of no-confidence
against the petitioners on the allegations viz., that the
activities of the Society are run by the petitioners without
consulting the Managing Committee Members, that they are
ill treating the Managing Committee Members and that they
are ill treating the farmers and causing loss to the income of
the Society. Subsequently, a notice dated 21-02-2015 was
issued proposing to hold the meeting of Motion of
no-confidence on 13-3-2015 at 10.30 a.m. in the office of
the Society. But, the said Notice was served on the
petitioners and other Managing Committee Members on
27-02-2015.
2. The contention of the petitioners is that the notice
of Motion of no-confidence falls short of 15 days and
therefore, not in accordance with Section 34-A of the
Andhra Pradesh Cooperative Societies Act, 1964 (the APCS
Act, for short) and the Rules framed thereunder.
They submitted that according to Section 34-A of the APCS
Act, there must be 15 days clear time for the debate and
holidays have to be exempted from the said period and that
the Motion of no-confidence which was proposed on
13-3-2015 shall not be carried on. They also submitted
that as per Rule 24-A of the Andhra Pradesh Cooperative
Societies Rules, 1964 (the APCS Rules, for short),
it is mandatory to issue notice with copies to be affixed on
the notice boards of the Society and the Gram Panchayat to
which the operation of the Primary Agricultural Cooperative
Society extends but no such notices have been affixed.
Under the aforementioned circumstances, they filed the
present writ petition invoking jurisdiction of this Court
under Article 226 of the Constitution of India for a Writ of
mandamus to set aside the proceedings dated 21-02-2015
duly served on the petitioners on 27-02-2015 proposing to
hold meeting of Motion of no-confidence under the
provisions of the Act.
3. The 1st respondent filed Counter Affidavit on behalf
of the respondents contending inter alia as follows:
That 10 out of 13 members of the Managing
Committee issued a notice dated 19-02-2015 to convene
a meeting to move the Motion of no-confidence against the
President and Vice President of the Society on 13-3-2015.
Accordingly, the 1st respondent issued notice dated
21-02-2015 proposing to hold a meeting of the Managing
Committee for the purpose of discussion and voting on the
proposed Motion of no-confidence on 13-3-2015 at
10.30 a.m. in the office of the Society. It is submitted by
the respondents that the said notices dated 21-02-2015
were handed over to the Chief Executive Officer (CEO) of the
Society with a direction to serve on all the 13 Managing
Committee Members and also to affix the same on the
Notice Boards of the Society as well as the Gram Panchayat
concerned. They were affixed on the Notice Boards of the
Society as well as the Gram Panchayat. Further, the CEO
of the Society met the petitioners who are the President and
the Vice President of the Society on 23-02-2015 and
24-02-2015 respectively around 6 p.m. at their respective
residences and requested them to receive the notices.
Both of them received the notices, read the contents and
returned them to the CEO asking him to come on the next
day. Thereafter, it is said that the CEO met the President
on 23-02-2015 and the Vice President on 24-02-2015.
Both of them had some internal discussions and refused to
receive the notices. Thus, according to the respondents, the
President and Vice President though did not acknowledge
receipt of the notices on 23-02-2015 and 24-02-2015, they
had perfect knowledge about the contents of the notice.
4. Nextly, it is submitted that as required under
Section 24-A of the APCS Rules, the notices were also sent
to the addresses of the President and the Vice President of
the Society on 24-02-2015 by registered post. The letter
sent to the President was returned on 24-02-2015 with
an endorsement that the addressee refused to receive the
letter whereas the Vice President received the letter sent by
Registered Post on 27-02-2015. Therefore, the version of
the respondents is that both the President and the Vice
President of the Society by a calculated design having full
knowledge about the notices made it to appear that they
received the notices on 27-02-2014 for the purpose of
showing that there is no 15 days clear notice as
contemplated under Section 34-A of the APCS Act.
It is asserted by the respondents that the President read the
contents of notice on 23-02-2015 and the Vice President
read the contents of notice on 24-02-2015 and therefore,
their contention that they had no knowledge about the
notice till 27-02-2015 is factually incorrect and it is
a deliberate, fabricated fact to suit their purpose in the
present writ petition. It is the case of the respondents that
as both of them had knowledge about the notice on the
aforementioned dates respectively, the notice should be
treated as deemed service on them and that they had clear
notice of 15 days when the CEO had met them on
23-02-2015 and 24-02-2015 respectively and that they are
fully aware of the fact that 10 out of 13 members of the
Managing Committee have given a notice to move Motion of
no-confidence against them, the chances of their survival in
the face of Motion of no-confidence being lean, they came
out with the invented and concocted story that there is no
clear 15 days notice from 27-02-2015 on which date they
accepted the notice. Contending as above, the respondents
sought to dismiss the writ petition.
5. I have heard Sri Nandigam Krishna Rao, learned
counsel appearing for the petitioners and the learned
Special Government Pleader for Cooperation appearing for
the respondents.
6. The learned counsel appearing for the petitioners
contends that the Registrar of Cooperative Societies shall
give to the members of the Society notice of not less than
15 clear days of the meeting of Motion of no-confidence and
the provision is mandatory. In the instant case, since there
is no 15 clear days of notice, the notice shall be declared as
invalid.
7. On the other hand, the learned Special Government
for Cooperation referring to the contentions urged in the
counter argued that since the notice was tendered by the
CEO of the Society to the petitioners 1 and 2 on 23-02-2015
and 24-02-2015 respectively, it is deemed that they had
knowledge of the said notice and therefore, there is no
substance in the contention that there is no 15 days clear
notice to the petitioners.
8. Section 34-A(3) of the APCS Act shall be read along
with Rule 24-A of the APCS Rules. Sub-rules (2) and (3) of
Rule 24-A of the APCS Rules lays down as follows:
(2) The service of notice may be effected in any of the ways,
namely:-
(a) by giving or tendering it to such person; or
(b) by sending it by registered post to their address.
(3) A copy of the notice shall also be affixed on the
notice board of the society and also on the notice board of
the Office of the Registrar.
The proviso reads as under:
Provided that if the area of Society extends to more
than one Panchayat or Mandal Office the notice shall be
affixed in all Panchayat Offices or Mandal Offices.
9. The version of the respondents is that they have
complied with all the requirements of Rule 24-A of the APCS
Rules. They asserted in the counter that the CEO of the
Society personally gave the notice to the petitioners on
23-02-2015 and 24-02-2015 respectively. They have gone
through the contents of the notice but asked him to come
on a subsequent day. Therefore, the contention of the
respondents is that the petitioners have knowledge of the
Motion of no-confidence on the aforesaid two dates and the
notice is in accordance with the provisions of the APCS Act
and the APCS Rules. This Court while exercising
jurisdiction under Article 226 of the Constitution of India is
not supposed to evaluate the evidence. However, after going
into controversial facts, to arrive at a prima facie opinion,
it can examine the facts asserted by both parties and also
the material placed on record by them.
10. The learned Special Government Pleader for
Cooperation furnished to this Court, the acknowledgements
of the petitioners 1 and 2 and the envelope sent to the
1st petitioner. The envelope sent to the 1st petitioner shows
that the addressee refused. The envelope also shows that
it was despatched on 24-02-2015 and the Postal authorities
approached the 1st petitioner on 25-02-2015. Therefore, the
refusal of the 1st petitioner relates back to the date
25-02-2015 and the endorsement clearly shows that when
the concerned person of the Postal Department approached
the 1st petitioner, he did not accept the envelope and
refused to take notice. Further, the acknowledgment of the
2nd petitioner also shows that the envelope was despatched
to him on 24-02-2015, which is indicative of the fact that he
must have also received the same on 27-02-2015 cannot be
accepted. Further, there is an alternative efficacious
remedy available to the petitioners by way of an appeal
under Section 76 of the APCS Act if at all they wanted the
evidence has to be meticulously examined. The petitioners
without approaching the Cooperative Tribunal under
Section 76 of the APCS Act by way of an appeal, approached
this Court. This Court, however, examined the material
placed by the respondents for arriving at the prima facie
opinion as to when the notice was tendered to the
petitioners in time. Either in Section 34-A of the APCS Act
or in Rule 24-A of the APCS Rules, the expression used by
the Legislature is by giving or tendering the notice.
Nowhere the expression that the notice has to be actually
served on the members of the Society is used. By placing
relevant material, the respondents could be able to
demonstrate before this Court that notice was tendered to
the petitioners and there was 15 days clear notice to the
petitioners of the Motion of no-confidence proposed to be
moved against them on 13-3-2015.
11. The learned counsel appearing for the petitioners
relied on some judgments of this Court to show that there
must be 15 clear days of notice for moving Motion of
no-confidence. There is no doubt about the proposition.
But, in the instant case, as already said, the respondents
could be able to establish that there was 15 days clear
notice as contemplated under the APCS Act to the
petitioners.
12. For all these reasons, the writ petition fails and the
same is dismissed without any order as to costs.
The miscellaneous petitions, if any, pending in this writ
petition shall stand closed.
__________________
R.KANTHA RAO, J.
12th March, 2015