THE HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.21491 of 2009 22nd January, 2010 Between :- Fishermen Coopertive Society, Akkinepally village, Narkatpally Mandal Nalgonda District Rep. by its President Gudese Dasaradha .. Petitioner And The Deputy Director of Fisheries, Nalgonda, Nalgonda District and others .. Respondents THE HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.21491 of 2009 ORDER:- Respondents No.1 to 3 filed W.V.M.P.No.3932/2009 to vacate the interim order. Respondent No.4 filed W.V.M.P.No.4253/2009 to vacate the interim order. The relevant material papers also had been placed before this Court. 2. This Court ordered notice before admission on 9-10-2009 and granted interim suspension for a limited period which is being extended from time to time. This Court issued rule nisi on 14-12-2009. When the vacate applications are coming up for hearing, the Counsel on record – Smt.M.Vidyavathi, the learned Counsel representing the writ petitioner, the learned A.G.P. for Fisheries representing R.1, R.2 and R.3, and Sri Palle Nageshwar Rao, the learned Counsel representing R.4 made elaborate submissions and further made a request for final disposal of the Writ Petition. Hence, the Writ Petition itself is taken up for final hearing. 3. Smt. Vidyavathi, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the contents of the order under challenge and also the other material papers placed before this Court and would maintain that in the facts and circumstances of the case the Writ Petition to be allowed since the letter under challenge is contrary to the spirit of the A.P.Cooperative Societies Act, 1964 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience), the Andhra Pradesh Cooperative Societies Rules, 1964 (in short referred to as ‘the Rules’). The Counsel also would further point out the relevant provisions of the Act in general and Section 19 of the Act in particular. The learned Counsel further explained the procedure to be followed and would maintain that inasmuch as proper enquiry was not conducted and proper opportunity was not given, it would be just and proper to give opportunity to all the parties with appropriate direction to the Assistant Director of Fisheries, Nalgonda to verify the facts in the light of certain factual controversies. 4. The learned A.G.P. for Fisheries had taken this Court through the contents of the counter affidavit and also pointed out to the relevant material papers which had been placed before this Court and would maintain that in the light of the clear stand taken in paras 4 and 5 of the counter affidavit, this Writ Petition being devoid of merit, the same to be dismissed. 5. Sri Palle Nageshwar Rao, the learned Counsel representing R.4 had pointed out to the material papers which had been submitted along with the counter affidavit and also would maintain that by hook or cook, the admission of the members is being delayed, for sufficiently a long time and the genuine and bona fide members are being deprived of their legitimate rights, hence, the Writ Petition itself is not a bona fide one and the same to be dismissed. 6. Heard the Counsel on record, perused the averments made in the affidavit filed in support of the writ petition, the respective stands taken in the counter affidavits and also the contents of the material papers placed before this Court. 7. The translated version of the letter in telugu dt.12-8-2009 reads as hereunder:- GOVERNMENT OF ANDHRA PRADESH FISHERIES DEPARTMENT From: To Sri C.Subrahmanyam, M.Sc., The President, Asst.Director of Fisheries, Fishermen Coop.Society, Nalgonda Akkenapally (v), Narketpally(M),Nalgonda. Lr.No.219/E/2007, dt.12-8-2009 Sir, Sub:- Department of Fisheries – Fishermen Coop.Society, Akkenapalli, Narketpally Mandal – Admission of New Members – Reg. Ref:- 1) Representation of Sri K.Yadaiah and others, Akkenapalli village, dt.28-5-2007. 2) Memo vide No.661/B/07, dt.31-5-2007 of Dy.Director of Fisheries, Nalgonda. 3) Memo from this Office vide No.219/E/7, dt.15-11-2007. 4) Interim directions from Hon’ble High Court vide No.24217/2007, dt.15-11-2007. 5) Letter No.MaSaPa/No/07, dt.16-11-2007 of Asst.Director of Fisheries, Nalgonda. 6) Memo vide No.661/B/07, dt.13-2-2009 of Dy.Director of Fisheries, Nalgonda. -: o0o :- Through reference 1st cited above, Sri K.Yadaiah and others, residents of Akkenapalli village requested to admit them as members in Fishermen Cooperative Society, Akkenapalli, Narketpally Mandal. Through reference 3rd cited, the said representation was sent to the Asst. Director of Fisheries, for sending final report. Through reference No.5 of above, the Asst. Director of Fisheries, informed that 46 persons selected through Skill Test conducted by Threemen Committee and Skill Test for 19 members who are recommended by the Fishermen Cooperative Society, Akkenapalli was postponed because interim orders passed in 24217 of 2009 dt.15-11-2007 by Hon’ble High Court. Through reference 6 of above, the Hon’ble High Court was instructed to take appropriate action while disposing the Writ Petition No.24217/2007. As per above referred orders, the Asst. Director of Fisheries, Nalgonda, has submitted the following report. 1. Areas of operation of FCS .. 62 Hectors 2. Number of Present Members of Society .. 13 3. Skill Test dt.15-11-2007 by the Three Men Committee .. 30 4. Fishermen Cooperative Society, Akkenapalli And Asst.Director of Fisheries, .. 19 recommended We request to admit 49 members as there is no problem for society viability. Hence, we request the President/Secretary, Fishermen Cooperative Society, Akkenapalli. As per the request of the Asst. Director of Fisheries, Nalgonda, and orders of Hon’ble High Court of A.P., to admit 49 members as per Section 19 of the Act and request to send resolution copies. Yours sincerely, Sd/- Asst. Director of Fisheries, Nalgonda. 8. This writ petition is filed for a Writ of Mandamus declaring the order of the Assistant Director of Fisheries, Nalgonda, vide letter No.219/E/2007, dt.12-8-2009 as bad, arbitrary, contrary to the spirit of the Act and the Rules and also offends Articles 14, 19 and 21 of the Constitution of India and pass such other suitable orders. 9. It is the case of the petitioner that the Fishermen Co-operative Society, Akkinepally which was registered under the Act on 6-11-96 with registration No.241/QFC/96. The society covers one village by name Akkinepally having an area of operation of an extent of Ac.149.33 guntas apart from the inundated area to an et of Ac.16.00. Thus the water catchment area of the tank (Ura Cheruvu) is only 62 hectors. At the time of registration the membership of the society is 13 and the same was raised to 52. The affairs of the society were administered smoothly by the members of the Managing Committee elected from time to time without any complaint. 10. It is also the case of the writ petitioner that on the representation of one Kommi Yadaiah, Ex.MPTC, and others who sought seeking admission into the petitioner society to the 2nd respondent, the 3rd respondent issued notice vide Notice No.AIF/Nalgonda/03, dt.31-1- 2003 directing the applicants therein to attend for skill test scheduled on 12-2-2003 to prove your skill with relevant tools. Though the test had been conducted, none of them were attended the skill test. The 3rd respondent had issued repeated notices. Ultimately, the 3rd respondent conducted the skill test who attend the said test on 11-2- 2004 and found 6 members who got partially experienced in the profession. 11. Further it is stated that thereon he had submitted the report that it is not possible to admit new members into Fishermen Co- operative Society, Akkinepally. Hence, the claim of Kommi Yadaiah and others had been rejected by the 2nd respondent in its order vide letter No.247/E/2002, dt.21-2-2005. Again on the representation of the same persons, the 3rd respondent had issued notice vide No.AIF/N/2007, dt.6-11-2007 wherein directed the applicants therein to attend for skill test on 6-11-2007. Questioning the said notice, the society filed a Writ Petition W.P.No.24217/2007. 12. Further it is stated that this Court was pleased to suspend the notice of the 3rd respondent vide No.AIF/N/2007, dt.6-11-2007 in its order dt.15-11-2007. Finally the said matter had been dismissed on the ground that mere conducing of such a test would not result in any membership as such it is only one of the steps to be complied with in the process of admitting members. Ultimately, the admission of membership could be guided by the Act and the Rules. 13. It is also the case of the writ petitioner that the Assistant Director of Fisheries i.e., the 2nd respondent had issued an order vide letter No.219/E/2007, dt.12-8-2009 directing the society to admit 49 members listed out as per Section 19 of the Act and report compliance to his Office. As stated supra, the society is existing with 52 members having an extent of 62 hectors of water spread area. It is no doubt stated that it is possible to admit only 10 persons since there is no viability to admit 30 members as directed in the impugned notice. 14. It is also stated that under Section 19 of the Act, the society is free to either admit the persons referred to by the Registrar as members or pass a resolution rejecting their applications for membership by giving reasons in accordance with law. 15. Section 19 of the Act reads as hereunder:- Eligibility for membership:- (1) Subject to the provisions of Section 21, - (a) an individual who attained majority and is of sound mind and who belongs to a class of persons, if any, for whom the society is formed as per its bye-laws and who possesses such qualifications as may be specified in the bye-laws or as may be prescribed ft concerned class of societies in the interest of Co- operative movement. (b) A society registered, or deemed to be registered, under this Act or the Andhra Pradesh Mutually Aided Co-operative Societies Act, 1995 (Act No.30 of 1995) and which belongs to the class of societies, if any, for which the society is formed as per its bye-laws. Provided that the Co-operative Society registered under the Andhra Pradesh Mutually Aided Co-operative Societies Act, 1995 which were admitted into Central, Apex Level Cooperative Societies, shall not be entitled for voting rights. (c) The Government; shall be eligible for admission as member – Provided that no individual shall be eligible for admission as a member of any financing bank or federal society: Provided further that an individual who was admitted as a member of the financing bank or federal society and continuing as such on the date of the commencement of the Andhra Pradesh Cooperative Societies (Amendment) Act, 1985, shall, on the commencement ceases to be a member of such bank or society: Provided also that a society shall admit an individual or a society referred to in clauses (a) and (b) above as a member, subject to the condition that the society is in a position to extend its services to such individual or society. Explanation I:- For the purpose of this sub-section; (i) ‘family’ means husband, wife, unmarried sons, unmarried daughters and other dependents in the house-hold; (ii) ‘weaver’ means any individual not being a master weaver, who attends to operations of weaving of cloth or fabric or product on the loom whether such operation is carried on in private dwelling house or any other place and is dependent on weaving as profession and income thereof. Explanation II:- For removal of any doubts, it is hereby declared that Mutually Aided Cooperative Societies registered or deemed to be registered under the Andhra Pradesh Mutually Aided Cooperative Societies Act, 1995 shall be entitled to all the rights and privileges of a member of a society except voting rights under the provisions of this Act on admission as such member. (2) Notwithstanding anything in sub-section (1), - (i) any firm, company or any other body corporate constituted under any law ft time being in force, or a society registered under the relevant Societies Registration Act or a local authority or a public trust registered under any law ft time being in force relating to the registration of such trusts, which is immediately before the commencement of this Act, a member of a society deemed to be registered under this Act shall have, subject to the other provisions of this Act, the right to continue to be such member on and after such commencement; (ii) the requirements specified in clauses (c) and (cc) in sub-section (2) of Section 6 for individual signing the application for registration of a society referred to therein, shall also apply to individuals seeking admission as members of such society after its registration; (iii) any statutory body constituted for the purpose of development of a particular industry, may become a member of a co-operative marketing or processing society of growers or workers engaged in such industry; (iv) persons who are minors, may, subject to such restrictions or limitations as may be applicable to a minor under the provisions of any law, ft time being in force, be admitted as members of such class of societies as may be prescribed; (2-A) Any person duly qualified for admission as a member under the provisions of this Act, the rules and the bye- laws, may apply through the Registrar for membership of such societies and in such forms as may be prescribed and such person shall be deemed to have been admitted as a member of the society from the date of receipt of the application in the office of the society. (2-B) Notwithstanding anything in this Act, the Registrar may either suo motu at any time or on any application by the society or any aggrieved person made within fifteen days from the date mentioned in sub-section (2-A) and after giving an opportunity to the person concerned and recording the reasons therefore declare such person as not eligible for membership of the society within thirty days from the date of receipt of the application by the Registrar. (3) The General body of a society shall not without sufficient cause, refuse admission to membership to any person duly qualified therefore under the provisions of this Act and its bye-laws. Where admission is so refused, the decision, with reasons therefore, shall be communicated by the registered post to such person within fifteen days of the date of the decision, or within sixty days from the date of his application for membership, whichever is earlier. (4) The name of every person admitted or deemed to have been admitted as a member of the society shall be entered in such records of the society as may be prescribed and the member so admitted shall be issued a photo identity card. 16. It is also the case of the petitioner that it is for the society to admit new members or not. The Registrar can only sent the list of names to the society for being registered as members. It is thus manifest that the general body of the society is an ultimate authority to admit members into the society whereas in the instant case there is no viability to admit more than 10 members since the general body has passed resolution to that extent. Though the petitioner society had passed a resolution and had been sent to the 2nd respondent stating that there is no viability to admit more than 10 members out of 30 members. Inspite of the fact that the 2nd respondent insisted/forced the society to admit all the 30 persons with different calculations on wrong colouring which is not feasible. Hence, the order is bad in law. In such circumstances, the Writ Petitioner approached this Court and obtained interim suspension as specified supra. 17. In the counter affidavit filed by R.1 to R.3 it is stated that it is true that Kommu Yadaiah, Ex.M.P.T.C., who sought admission into the petitioner society did not attend the skill test, the 3rd respondent again gave a notice and conducted skill test on 11-2-2002 and found six members who got partially experienced in profession. Thus Kommu Yadaiah, Ex.M.P.T.C., and others were rejected by the respondent vide Lr.No.247/E/2002, dt.21-2-2005. 18. Further it is stated that once again the same persons submitted representation seeking admission into the petitioner society, in response to which the 3rd respondent i.e., the Asst.Inspector of Fisheries had given a notice vide Lr.No.AIF/N/2007, dt.6-11-2007 directing the applicants to attend the test on 16-11-2007. 19. It is also averred that the said notice had been questioned by the petitioner society and filed a Writ Petition vide W.P.No.24217/2007. This Court dismissed the said Writ Petition on the ground that mere conducting such a test could not result in any membership, as such it is only one part of step to be complied with in the process of admitting membership. Ultimately the admission of membership could be guided by the Andhra Pradesh Co-operative Society Act and the Rules.” 20. Further it is averred that a person seeking membership of a Fishermen Co-operative Society has to undergo skill test, before the skill test Committee constituted for this purpose vide the Commissioner of Fisheries, A.P., Hyderabad vide Lr.No.182/I(1) 1997, dt.16-10-2- 1997 and prove their skill in profession to get enroll in the Fishermen Co-operative Society and depending on the feasibility and viability, their request will be considered. As such the member can apply or represent again after some time. The Three Men Committee will conduct the skill test and if he gets through skill test only, he will be admitted subject to condition of viability and feasibility of the society, as per the recommendation of the Asst. Director of Fisheries/Ex-Officio Deputy Registrar. 21. It is also averred in para 5 of the counter affidavit that as the petitioner society is having only 13 members existing presently, and 49 members who got through the skill test conducted by the Three Men Committee, the President of the society was directed to give admission as per Section 19 of the Act and report compliance. The version of the society saying that there are 52 existing members in the society and only 10 persons can be admitted to the extent of water spread area of 62 Hectors is not correct (1 Hector i.e., 1 person). 22. It is also averred that it is true that the society is having authority through its General Body Meeting to admit the members, but as per the Cir.Memo. of the Commissioner of Fisheries, A.P., Hyderabad No.182/II/97, dt.16-10-1997, who are seeking admission have to go through the skill test conducted by the Three Men Committee and show their proficiency of having fishing skills. This is to see that, only genuine fishermen who are having skill, eking their livelihood only on fishing, living in that village only will be recommended for admission into the society. As such, the 2nd respondent had requested the society to admit the members by conducting General Body Meeting and passing a resolution. At the first instance, the society had accepted, passed a resolution and informed that, they will admit 49 members and requested the 2nd respondent to send the names. But later, they had denied for admitting the said members. 23. It is also stated that keeping in view of the orders of this Court in W.P.No.24217/2007 to encourage the Cooperative spirit, in view of the availability of feasibility and viability, in view that only 13 members are in the society, since the extent available is 62 hectors, the society had been directed to admit 49 members into the society. 24. This is the specific stand taken in the counter affidavit of R.1 to R.3. 25. Along with the counter affidavit, the following material papers also had been enclosed:- 1) Lr.No.247/E/09, dt.21-2-2005 of the Deputy Director of Fisheries (Telugu version translated copy) 2) Notice No.AIF/N/07, dt.6-11-2007 of the Asst. Inspector of Fisheries (Telugu version translated copy) 3) Order copy in W.P.No.2427/2007 dt.22-10-2008. 4) Cir.Memo No.182I(1)/97 of the Director of Fisheries, Hyderabad. 5) Managing Committee Resolution of the Fishermen Co- operative Society, Akkinapally. 6) Lr.No.219/E/2009, dt.12-8-2009 of the Asst. Director of Fisheries. 7) Interim orders in W.P.M.P.No.27922/2009 in W.P.No.21491/09, dt.9-10-2009. 26. In the counter affidavit filed by R.4, it is stated that the petitioner society is having only 13 members in the society presently and the registration of the society and the other details also had been referred to. Specific stand had been taken that the respondent authorities pursuant to the orders made in W.P.No.1415/2003 conducted enquiry through the 3rd respondent who submitted his report on 4-3-2003, wherein it was noticed that 39 members whom the society tried to enroll are ineligible as 10 of them are minors, 9 of them are non- residents, one employee, 12 of them are their own family members and the remaining 7 of them are non-professional, who had not participated in the skill test. In the light of the same, the petitioner society is being run only with 13 members. 27. It is also stated that the petitioner society covers an extent of Ac.152.28 + Ac.17.05 guntas i.e., Ac.169.33 guntas. As per the guidelines issued by the respondent authorities, the feasibility and economically is per hectare for one member and as per the extent covered by the petitioner society more than 70 members can be accommodated, but from 1996 onwards only 13 members are enjoying the benefits without allowing any other skilled or eligible person to be the members. The petitioner society intentionally gave false representations stating that they raised the members of the society from 13 to 52, which is utterly false. 28. It is also stated that on 14-2-2008, the elections to the petitioner society were conducted and as per the Voters List published by the Election Officer clearly shows that the strength of the petitioner society is only 13. The petitioner society filed W.P.No.24217/2007 challenging the proceedings dt.6-11-2007 by suppressing the material facts and in the said Writ Petition, this respondent got impleaded himself as party respondent and filed vacate stay petition and after contest, the said Writ Petition was dismissed on 22-10-2008. Thereafter, the petitioner society passed a resolution and the President of the petitioner society collected the share capital from 4th respondent and 29 others and deposited the said amount in the Nalgonda District Cooperative Central Bank Limited, Nalgonda on 19-3-2009. Subsequently, respondent No.2 after due enquiry and conducting the skill test vide letter dt.12-8-2009 addressed to the petitioner with a direction to admit respondent No.4 and 29 others as members of the petitioner society. 29. It is also averred that the petitioner society collected the share capital/membership fee from this respondent and other members and recommended to the respondent authorities for inclusion of their names and now after issuance of the letter dt.12-8-2009 with a malafide intention, filed the Writ Petition only to deprive the legitimate right of the members proposed to be included. This is the stand taken by R.4 in the counter affidavit. 30. R.4 in fact was impleaded as per orders in W.P.M.P.No.30397/2009, dt.14-12-2009. 31. The order under challenge already had been referred to supra. Apart from the impugned order, the copies of the Minutes of the General Body and also the order made by this Court in W.P.No.24217/2007 also had been placed before this Court. While dismissing W.P.No.24217/2007 this Court observed as hereunder:- “Through the impugned notice, the 3rd respondent had arranged for conducting of a skill test. Mere conducting of such a test, would not result in any membership, as such, it is only one of the steps, to be complied with, in the process of admitting the members. Ultimately, the admission of membership would be guided the relevant provisions of the Act and the Rules. At any rate, the skill test has since been conducted. The petitioner is not able to point out any serious legal, or factual defect in the impugned notice. The Writ Petition is accordingly dismissed. There shall be no order as to costs.” 32. Letter No.247/#/09, dt.21-2-2005 of the Deputy Director of Fisheries, Nalgonda reads as hereunder:- GOVERNMENT OF ANDHRA PRADESH FISHERIES DEPARTMENT From: To Sri D.Krishnaiah, M.Sc., Sri Kommu Yadaiah & Others Dy. Director of Fisheries, Akkenapally (v) NALGONDA DIST. Narketpally (m), Nalgonda Dist. Letter No.247/E/09, dt.21-2-2005. Sir, Sub:- Fisheries – Fishermen Co-operative Society, Akkenapally Enrollment of