HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.5088 of 2009 Date: November 10, 2009 Between: 1. Ambati Muthyalu and 5 others. … Petitioners And 1. The Deputy Director of Fisheries, Nalgonda and 4 others. … Respondents * * * ORDER: This Court issue Rule Nisi on 13.3.2009 and granted interim suspension as prayed for. W.P.M.P.No.14622 of 2009 was filed by the 5th respondent to implead him and R-5 was impleaded as per the orders in W.P.M.P.No.14622 of 2009, dated 13.10.2009. Respondent No.5 filed W.V.M.P.No.3287 of 2009 to vacate the interim order. A reply-affidavit also was filed. 2. The writ petitioners filed the present writ petition for a writ of Certiorari calling for the records pertaining to CTA No.6 of 2008 on the file of the A.P. Co-operative Tribunal, Warangal, and quash the order dated 31.01.2009 made therein confirming the order passed by the first respondent in Proceedings No.1448/B/2007, dated 28.4.2008 cancelling the petitioners’ primary membership from third respondent society i.e., Fishermen Co-operative Society Ltd., Narsingbhatla village, Nalgonda Mandal and District, as illegal, arbitrary, against the principles of natural justice and contrary to the provisions of Andhra Pradesh Co-operative Societies Act, 1964, and consequently direct the respondents to continue the petitioners as members of the Fishermen Co-operative Society Ltd., Narsingbhatla village, Nalgonda Mandal and District and pass such other suitable orders. 3. Sri V. Jithender Rao, learned counsel representing writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the stands taken in the counter-affidavits and also the reply-affidavit and would maintain that the A.P. Co- operative Tribunal, Warangal (hereinafter in short referred to as “Tribunal” for the purpose of convenience) while making an order in C.T.A.No.6 of 2008 was unable to appreciate the fact that there was no notice issued by the second respondent before causing inquiry and also the request made by the president of the society for postponement of inquiry also was rejected. The learned counsel also would maintain that the inquiry was conducted behind the back on the writ petitioners and there was no opportunity for them to go through the complaint dated 30.11.2007 said to have been made by the Ex-president of the society and even a copy at least was not furnished to the petitioners. The counsel also would point out that the Tribunal failed to appreciate that the VAO is not the competent authority to certify about the fishing capacity, there was no application of mind in cancelling the membership and no appropriate reasons had been recorded and the voters list is not the ultimate evidence to prove the residence of an individual. The learned counsel also had drawn the attention of this Court to the relevant provisions of the A.P. Co-operative Societies Act, 1964 and would maintain that in the facts and circumstances of the case the writ petitioners are bound to succeed and, hence, the writ petition to be allowed. 4. The learned Assistant Government Pleader for Co-operation had taken this Court through the contents of the counter-affidavit and also the material papers placed before this Court and would maintain that in the light of the clear stand taken in the counter-affidavit by the official respondents, this is not a fit matter to be interfered with, especially, in the light of the elaborate reasons recorded by the Tribunal while confirming the order. 5. Ms. M. Vidyavathi learned counsel representing respondent No.5 had taken this Court through the contents of the counter-affidavit of 5th respondent and would maintain that in the light of the elaborate reasons recorded by the Tribunal, since these are factual controversies, this is not a fit matter to be interfered with. 6. Heard the counsel, perused the findings recorded by the Tribunal in the order under challenge, the respective pleadings of the parties and the material placed before this Court. 7. The relief prayed for in the writ petition had been referred to above. It is the case of the writ petitioners that the Fishermen Co-operative Society, Narsingbhatla village, Nalgonda Mandal and District (hereinafter in short referred to as “Society” for the purpose of convenience) was established in the year 1974 and registered under the A.P. Co-operative Societies Act, 1964 (hereinafter in short referred to as “Act” for the purpose of convenience) and the petitioners being fishermen by caste and knowing fishing, got enrolled as its members on its establishment and in the list prepared by the then Managing Committee, their names found place at serial Nos.20, 11, 43, 62, 23 and 37 respectively. In the elections held on 12.3.2007 the first petitioner was elected as Vice-President and petitioners 2 to 4 were elected as members of the Managing Committee. 8. It is also the case of the writ petitioners that after taking over charge, they had verified with the affairs managed by the Ex-president and questioned about the irregularities, for which the Ex-president bore grudge against them and made a complaint dated 30.11.2007 against them to the first respondent stating that the petitioners are not staying in the village and they being pensioners, are not eligible to continue as members of third respondent society and requested to cancel their primary membership. Pursuant to the same, the second respondent issued notice dated 19.02.2008 to the president of the third respondent society to attend inquiry on 23.02.2008 with regard to their eligibility as members of the said society. The president requested in writing on 22.02.2008 for postponement of inquiry stating that the petitioners are not available in the village, but an ex parte inquiry was conducted behind their back and report was submitted to the first respondent holding that the petitioners are not eligible to be the members on the ground that the petitioners are not staying in the village and their names were not found place in the village voters list. Based on the said report, the first respondent issued show cause notice No.1448/B/2007, dated 15.3.2008, calling for their explanation within seven days as to why their membership should not be cancelled as per bye-law No.4 (A), under Section 21 of the Act and also Rule 20 thereof. 9. Further it is stated that they submitted explanation stating that they are fishermen by caste and living in the village and possess agricultural land there and they are continuing as members of the third respondent society since 1974 and working for its welfare without accepting any remuneration. The earlier Managing Committee had leased out two tanks in the village for fishing and due to drought conditions they are forced to leave the village frequently for livelihood and requested to drop further proceedings, however, the first respondent without assigning any reasons, passed order in Proceedings No.1448/B/07, dated 02.4.2008 directing the third respondent society to pass resolution to cancel their primary membership, but, the third respondent society had not responded and the first respondent himself passed orders in Proceedings No.1448/B/2007, dated 28.4.2008, cancelling their primary membership from the third respondent society. They carried the matter in appeal under Section 76 (1) of the Act before the Tribunal, Warangal, but the Tribunal, without appreciating the evidence on proper perspective, confirmed the order passed by the first respondent. Aggrieved by the same, the writ petition had been filed raising several grounds. 10. In the counter-affidavit filed by respondents 1 and 2 specific stand had been taken that on receipt of representation regarding the allegations against the petitioners 1 to 6, the Deputy Director of Fisheries, Nalgonda, issued instructions to Fisheries Development Officer, Nalgonda (second respondent) for inquiry and after conducting inquiry as per the Act and Co-operative Rules, the Fisheries Development Officer reported that the petitioners are not eligible to be the members, as they are not staying in the village and their names are not found in the voters list. Based on the report of the Fisheries Development Officer, the first respondent issued a show cause notice as per by-law 4 (A) and under Section 21 and under Rule 20 of the Act. Since the society management did not respond to the direction of the first respondent to pass resolution for cancellation of the membership of the petitioners, the first respondent passed orders duly cancelling the membership of the petitioners from the society as per by-law No.4 (A) and under Section 21 of the Act and under Rule 20 of the A.P. Co-operative Rules. The Tribunal had confirmed the orders issued by the first respondent. 11. It is also averred in para 4 that in reply to para 6 respondents 1 and 2 stated that the second respondent had followed the procedure and conducted inquiry personally within the village with prior intimation and notice to the petitioners and serving the copy of allegations. Since the petitioners failed to attend the inquiry and produce evidence in their favour, respondent No.1 cancelled their primary membership basing on the inquiry report supported by the evidence of voters list and confirmation from the Village Authorities. The third respondent society failed to pass resolution in the stipulated time given by the first respondent and the first respondent is competent to pass orders for disqualifying the committee members. The Tribunal had passed orders duly verifying the records and calling the first respondent to the Court for appraisal. 12. Further it is stated that as per the orders made by the Tribunal, Warangal, dated 31.01.2009, the first respondent initiated action by appointing person-in-charge to the society due to non-existence of the Managing Committee to the said third respondent society. The relevant proceedings also had been placed by way of material papers. 13. In the counter-affidavit filed by 5th respondent it is stated that the 5th respondent and another filed complaint to the third respondent on 30.11.2007 stating that the petitioners are ineligible members being pension holders, employees and non-residents of the village and in view of their existence in the society, the rights of genuine fishermen are deprived. Apart from the above, the directors of the Managing Committee are not distributing the income derived from fishing. Respondent No.5 had produced the non-residential certificate issued by the V.R.O. as proof of evidence. Thereupon, the second respondent had conducted an inquiry on 23.2.2008 and in turn submitted a report to the first respondent as there are ineligible members who found in inquiry. Based on the said report, the first respondent issued notice vide Notice No.1448/B/2007, dated 15.3.2008, calling for their explanation and after considering their explanation, the first respondent had issued an order vide Lr.No.1448/B/2007, dated 02.4.2008, directing the third respondent society to pass resolution removing the petitioners from their primary membership of the society under Section 21 of the Act. Aggrieved by the same, the petitioners filed the present writ petition as well as C.T.A.No.6 of 2008. The Tribunal dismissed the said C.T.A. dated 31.01.2009. 14. It is also stated that the petitioners are non-residents and employees, since they are not depending on fishing eking out their livelihood. It is also stated that basing on the report of the second respondent, the first respondent had passed orders in his Proceedings No.1448/B/2007, dated 02.4.2008, directing the third respondent society to remove the ineligible members shown in the order from the primary membership of the society under Section 21 of the Act and report to the office along with the copies of resolutions. The petitioners had not made out any case to submit that the order of the first respondent, dated 02.4.2008 is bad. As admitted in the affidavit, the petitioners are not available even during inquiry. Thus, the petitioners are ineligible members of the society, since they are non-residents of the village. 15. Further, it is stated that the stand taken that no notice was issued by second respondent and rejected the request of the president of the society for postponement of inquiry is not correct, since the second respondent issued notice and conducted an inquiry. Further, the first respondent issued show cause notice calling for explanation for the grounds alleged in the notice. The petitioners also submitted their explanation to the show cause notice. Hence, the ground that the petitioners were not put on notice before inquiry is not correct, since they had availed the opportunity to submit their explanation on the show cause notice dated 15.3.2008. 16. It is also stated that the first respondent issued an order vide Proceedings No.1448/B/07, dated 02.4.2008, by exercising powers conferred on him to resolve the disputes among the members, society and its members and members inter se. Hence, the first respondent had got power and jurisdiction to issue such notice to the third respondent society to act upon the complaint against some of the directors of the Managing Committee. Certain further averments also had been made in paras 6 and 7 of the counter-affidavit. 17. In the reply-affidavit filed, the averments made in the counter- affidavits had been denied and it is stated that a false complaint had been made, since these writ petitioners questioned the illegal activities in discharging the duties as president by the persons who made the complaint. Several further averments had been made in paras 3, 4 and 5 of the reply-affidavit as well and specific stand had been taken that the vacate stay petitioner is not at all an aggrieved party and no prejudice will be caused to him if the interim orders passed by this Court in W.P.M.P.No.6643 of 2009 are continued. 18. The present writ petition is for a writ of Certiorari. The main grievance of the writ petitioners is that no notice was issued by the second respondent before causing inquiry and the request made by the president of the society for postponement of inquiry also was rejected and there was no proper opportunity either to go through the complaint dated 30.11.2007 or to participate in the inquiry and individual notices also had not been issued and, hence, the inquiry and the consequential report are in violation of principles of natural justice. Hence, the first respondent ought not to have relied on such inquiry and the consequential report for cancelling the primary membership of the writ petitioners. Further stand had been taken that the voters list by itself cannot be the conclusive evidence to prove the aspect of residence of an individual and the first respondent erred in holding that the pattadar passbooks and title deeds cannot be relied on for proving residence. Further specific stand had been taken that the first respondent as well as the Tribunal failed to appreciate that the VAO is not the competent authority to certify on fishing capacity and no test was conducted in this regard. The Tribunal failed to appreciate that the first respondent failed to apply mind while cancelling the membership and no reasons had been assigned except stating that the explanations are not satisfactory. 19. Further it is stated that in the proceedings dated 02.4.2008 the first respondent directed the third respondent society to pass resolution cancelling primary membership, but the third respondent society had not done so. Under the said circumstances, the first respondent is not empowered to cancel the primary membership, as the General Body of the third respondent alone is competent to remove the members. The authorities failed to appreciate the plea that the then Managing Committee of the third respondent society leased out fishing rights to third parties, as such there is no fishing activity and due to drought conditions they were forced to leave the village for livelihood. Further specific stand had been taken that for disqualifying membership of the committee members, proceedings should be initiated under Section 21-A of the Act and separate order should be passed. 20. Section 21 of the Act and Rule 20 of the Rules had been referred to and elaborate submissions had been made in this regard relating to the competency of the authority in making such an order and certain further submissions had been made that the General Body alone is competent to take appropriate decision in this regard. The certificates of the Village Revenue Officer had been produced before this Court and in these certificates it had been specifically specified that these names are not in the voters list and fishing not known to these parties and these parties are government employees/pension holders and at present they are not residing in the village. 21. The Notice No.1448/B/2007, dated 15.3.2008, of the office of the Deputy Director of Fisheries, Nalgonda reads as hereunder: GOVERNMENT OF ANDHRA PRADESH FISHERIES DEPARTMENT Office of the Deputy Director of Fisheries, NALGONDA. NOTICE No.1448/B/2007 Date:15.3.2008 Sub:- FISHERIES- Fishermen Coop., Society, Narsingbhatla of Nalgonda Mandal- Removal of ineligible members- Reg. Ref:-1) Representation of Ex-President, Fishermen Cooperative Society, Narsingbhatla, dated 30.11.2007. 2) Fisheries Development Officer, Nalgonda Report No.F.D.O/N/07, dt.07.3.2008. @@@ On the representation submitted by Ex-President vide reference 1st cited, the Fisheries Development Officer, Nalgonda, while submitting report vide reference 2nd cited above, informed that he has conducted the inquiry on 23.02.2008 and found that some of the Managing Committee members are not residing in village they are retired employees and pensioners. Hence, request to cancel their primary membership. In view of the above, why the Primary Membership of following ineligible members should not be cancelled as per by-law No.4 (A) and A.P. Cooperative Societies Act, 1964, Section 21 and Rule 20. Your reply should be submitted within (7) days from the date of receipt of this notice otherwise you will be held responsible for further action. 1) Sri Gudaboina Venkata Krishna, s/o Varadaiah 2) Sri Gudaboina Buchaiah, s/o Seshaiah 3) Sri Ambati Muthyalu, s/o Sivaiah 4) Sri Bommaraboina Anjaiah, s/o Kasaiah 5) Sri Bommaraboina Muthyalu, s/o Eshwaraiah 6) Sri Gundu Lingaiah, s/o Narsaiah Sd/- Deputy Director of Fisheries, Nalgonda. 22. The proceedings of the Deputy Director of Fisheries, Nalgonda, Proceedings No.1448/B/2007, dated 28.4.2008, reads as hereunder: PROCEEDINGS OF THE DEPUTY DIRECTOR OF FISHERIES, NALGONDA Present: Sri D. Krishnaiah, M.Sc., No:1448/B/2007 Date:28.4.2008 Sub:- Fisheries Dept.- For removal of ineligible members of Fishermen Co-op. Society, Narsingbhatla, Nalgonda (M) & Dist.- Request- Reg. Ref:-1. Representation of Ex-President, Fishermen Co- op. Society, Narsingbhatla, Nalgonda (M) & Dist., dt.30.11.2007. 2. Report of the Fisheries Development Officer, Nalgonda, dt.30-11-2007. 3. This office show cause notice No.1448/B/07, dt.15.3.2007. 4. Explanation of six members received in this office, dt.31.3.2008. 5. This office Lr.No.1448/B/07, dt.02.4.2008 - - 0 0 - - In reference to the 1st cited, the Ex-President of Fishermen Co-op. society, Narsingbhatla, Nalgonda (M) & Dist. Has requested to remove the ineligible members of the society. In reference to the 2nd cited the Fisheries Development Officer, Nalgonda, was requested to send report after due inquiry. In reference to the 2nd cited, the Fisheries Development Officer, Nalgonda, has sent report stating that the following six members are found ineligible. Details are as follows: Sl.No. Names of the members found ineligible Reasons for finding ineligible 1 Sri Gudaboina Venkata Krishna, s/o Varadaiah Retd. Employee/not residing in local 2 Sri Gudaboina Buchaiah, s/o Seshaiah Retd. Employee/not residing in local 3 Sri Ambati Muthyalu, s/o Varadaiah Retd. Employee/not residing in local 4 Sri Bommeraboina Anjaiah, s/o Kasaiah Private employee/ not residing in local 5 Sri Bommeraboina Muthyalu, s/o Eshwaraiah Private employee/ not residing in local 6 Sri Gudu Lingaiah, s/o Narsaiah Private employee/ not residing in local Through 3rd reference, show cause notice was issued to the ineligible members as to why their primary membership should not be cancelled. Through 4th reference submitted their explanation and requested to continue them as members of the society. As their explanation is not satisfactory hence rejected. Through 5th reference, the President/Secretary, Fishermen Co-operative Society, Narsingbhatla, Nalgonda (M) & Dist. Are requested to pass resolution removing the ineligible members and to send the copies of the resolution to this office, but there is no response. Keeping in view of all the above subject, above referred ineligible members are removed from the primary membership of the Narsingbhatla Fishermen Cooperative Society. Sd/- Dy. Director of Fisheries, Nalgonda District. 23. In the order under challenge C.T.A.No.6 of 2008 on the file of the Tribunal the respective stands of the parties had been referred to. The relevant sections and the rules also had been referred to and ultimately came to the conclusion that the order made by the Deputy Director of Fisheries, Nalgonda, removing the petitioners from the primary membership cannot be found fault and accordingly the same had been confirmed. The Tribunal recorded reasons in detail and came to the conclusion that the principles of natural justice had been complied with. The other findings are predominantly findings of fact and in the light of the limitations imposed on this court while exercising Certiorari jurisdiction, especially, in the light of the reasons recorded in elaboration by the Tribunal, this Court is thoroughly satisfied that this is not a fit matter to be interfered with, especially, in the light of the nature of the grounds raised and the contentions advanced by the counsel on record. 24. Accordingly, the writ petition being devoid of merit, the same shall stand dismissed. No order as to costs. ____________________ (P.S. NARAYANA, J) Date: November 10, 2009. BSB